The history of Russian criminal proceedings against minors

Fedotova Mariya Mikhailovna Postgraduate student, Department of Criminal Procedure, Criminalistics and Fundamentals of Forensic Examination, Krasnoyarsk State Agrarian University, Law Institute 660017, Russia, Krasnoyarskii krai, g. Krasnoyarsk, ul. Lenina, 117 Fedotova-mm@mail.ru

For a long time, the issue of the participation of minors in the criminal process of Russia was not solved consistently. Legal sources that have come down to our time provide limited information about everyday life and the legislative structure in Russia. Recently, interest in the history of the procedural status of minors has increased, due to the fact that legislators and law enforcement officers are increasingly asking questions about the development of legislation in this area of law. Researchers recognize the need to study issues related to the development of the scope of rights and obligations of minors in different historical periods, in order to adopt experience and prevent previous mistakes, because the vast majority of so-called juvenile technologies were borrowed by our state without proper understanding, relying only on the mentality and practice of foreign states. We do not want to say that foreign experience is negative, however, at present a detailed and critical understanding of legislative and technical problems related to the implementation of the implementation of the scope of rights and interests of minors is required, based on the evolutionary experience of the development of criminal proceedings in Russia, as well as in order to create a unique regulatory framework acceptable specifically for our mentality and historical memory.

This article aims to present the historical stages of the development of criminal proceedings against minors in order to highlight the lessons of the past. It is this approach that will help us identify common ideas and adopt the experience confirmed by time.

The first mention of the age of the participant in the criminal process refers to the Pskov court certificate dated 1397. Deciding on the conduct of the trial in the form of a duel, that is, on obtaining testimony, the legislator allowed: "the plaintiff or the defendant, a minor, sick, elderly ... crippled, etc. to put up hired fighters instead of himself for the court duel" ^[1]. It is noteworthy that the legislator does not determine the specific age of a "minor" person. Unfortunately, in the future, the age of the participants was not mentioned and did not receive any other legislative consolidation.

In the future, the age of a minor is mentioned only in 1649 in the Cathedral Code of Alexei Mikhailovich Romanov, which defines the age excluding the criminality of the act: "if a boy of seven kills, he will be innocent" ^[2]. In some cases, the responsibility of the guilty person was not removed, but only mitigated. Thus, in chapter 22 it is said that children can be punished with a whip ^[3]. The legislator does not indicate for which specific crime such measures should be resorted to. Probably, we are talking about murder, since in the previous articles we are talking about it.

After the death of Alexei Mikhailovich, the need for the publication of a new Code was felt, due to the fact that the legislation was changing, new state books were published, which brought disagreements during the trials. However, the publication of a common codified source was delayed, as a result of which Peter I solved this problem by publishing regulations on these parts of the administration in 1715. According to the criminal regulations, a list of persons who could testify was compiled. They were "kind and blameless people", but persons under 15 who were not eyewitnesses of facts of interest to the court were forbidden to give any testimony ^[4].

The mention of the age of the person is also in the Military Charter of March 30, 1716. Despite the fact that the charter implied the responsibility of military personnel, it contained responsibility for other types of crimes, such as: encroachment against the faith, a crime against the person of the sovereign, murder, sexual crimes, arson, theft, robbery. Thus, it could be applied not only to military personnel, but also to other persons.

 So, in article 195 there is a provision that "the punishment for theft is diminished or stopped if the thief is a baby" ^[5].  The legislative source does not give a clear understanding of the age to which a child is considered an infant. However, we can find this information in other written sources. According to historical research, in the era of Peter I, all persons under the age of 10 were considered infants ^[6]. Later, this age increased, which is recorded in the Decree of the Senate of August 23, 1742: "Juvenile delinquency in criminal cases lasts until the age of 17 ... minors are not subjected to the death penalty, torture, whip ... for them, these punishments are replaced by whipping and being sent to a monastery for correction" ^[6].

The next change in criminal legislation occurred during the reign of Catherine II. June 26 , 1765 Catherine II signed the "Decree", which consisted of 22 chapters and 655 articles. Most of it was devoted to criminal law. In the preface, the Empress expressed concern about the issues of correcting the identity of the criminal and indicated to mitigate the penalties for children who committed a crime aged 10 to 17 years. Thereby establishing a clear framework for the criminal responsibility of minors ^[7].

However, Catherine II was not satisfied with the work of the Laid Commission and she herself began to study the legislation, which led to the publication in 1767. The Code of Laws, which introduced significant changes to Russian legislation and, above all, to the issues of responsibility of minors. Thus, persons under the age of 17 were divided into 3 categories: 1) From birth to 10 years (could not be transferred to court and punished); 2) From 10 to 14 years for crimes of great importance and from 10 to 15 years for crimes of lesser importance; 3) From 14 to 17 years for crimes of great importance and from 15 to 17 years for crimes of lesser importance importance ^[8].

As for the last two age categories, the court had to find out from the defendant whether the person acted with "understanding" or not. If the answer was positive, ordinary criminal penalties were applied to the minor, but less severe than for adults ^[8].

Thus, the legislator takes a more responsible approach to determining the guilt and age of the commission of a crime, but does it "primitively", determining the understanding of the commission of a crime only from the words of the accused. There have been no changes in the rights and obligations of a minor during this historical period.

The end of the XVIII – beginning of the XIX century was marked by liberal sentiments and changes in Russian society. By the middle of the XIX century, an industrial revolution took place in the country, the number of factories and plants increased. Legislative activity has also changed. In 1813, the Commission for Drafting Laws issued a draft criminal code, which is recognized by legal scholars as a prototype of the General part of modern criminal law ^[9]. Changes in the definition of the legal status of a minor began only in the second half of the XIX century, and were enshrined in the Statute of Criminal Proceedings of 1864. This Statute indicated that persons under the age of 14 were not allowed to testify without the participation of their legal representatives (parents, guardians, educators) ^[10]. Later in 1897, changes were made to it, according to which special courts for minors were organized, from 10 to 17 years old. It was also essential that the court had to find out "with understanding" or not, a minor person had committed a crime. Experts in the field of medicine, pedagogy and psychology were invited to the court for expert evaluation. If it was established that a person had committed a crime "without understanding", then criminal prosecution against him was terminated ^[10].

Thus, the principles that were laid down by Catherine II remained a priority. The same norms were a prerequisite for the emergence of a procedural mechanism for the release of a minor from criminal liability due to his lag in development. However, there were also negative aspects: on the one hand, the court, fearing to disturb the mental balance of the minor, protected him from direct participation in the court session, giving legal representatives the opportunity to answer for him, on the other hand, deprived him of the opportunity to defend his rights ^[11]. The courts tried to separate criminal cases involving guilty minors into separate proceedings with the mandatory participation of a defender. This laid the foundations for the emergence of juvenile justice and juvenile courts in Russia.

In the late XIX – early XX centuries . Russia remained the only country where absolutism still persisted. Despite the fact that Russia abandoned serfdom, the authorities tried to strengthen traditional citizenship relations and suppress any violations of the established state system. In this regard, the criminal legislation treated crimes against the authorities more harshly, while not forgetting to pay attention to human rights and duties. Thus, the Criminal Code of 1903 fixed two types of sanity: unconditional and conditional, and indicated that a person under the age of 10 is conditionally sane and should not be subject to criminal liability, and at the age of 10 to 17, his sanity should be established by the court in each individual case ^[12].

It was during this period that Russian lawyers such as E.Y. Nemirovsky, A.F. Kistyakovsky, S.V. Poznyshev, I.Ya. Foynitsky, D.A. Drill, P.I. Lyublinsky, N. Okunev raised the question of the ability of a minor to bear criminal responsibility, and proposed replacing it with educational measures, but they began to discuss it again after the victory of the October Revolution.

More attention has been paid to the rights of the witness. Lawyers drew attention to the very understanding of the term "witness". So, A.Ya. Vyshinsky writes: "... the living word of a direct eyewitness of the event, calmly and objectively telling the investigation and the court about the circumstances of this event, about the criminal, about the crime situation. Witness testimony is the most important means of revealing the mystery of the crime committed" ^[13].

It was a good attempt to give the witness a procedural status. Unfortunately, during this period there are no legislative provisions in relation to a minor.

The procedural procedure ceases to be formal, and the court sessions did not receive publicity. Legal representatives and educators had to participate in the trial without fail, and the hearing itself was not so much accusatory as educational in nature with the repentance of the guilty person. Strict control over compliance with the execution of the court decision in relation to the minor was positive. A Russian researcher in the field of juvenile justice notes that "the Russian juvenile court of 1910-1918 was also distinguished by signs related to the criminal process: broad subject jurisdiction; the closed nature of the trial; the absence of formal judicial procedure; simplified proceedings; the absence of a formal indictment" ^[14].

The events that unfolded in the early – first third of the twentieth century were filled not only with political struggle, but also with the growth of crime. When the murder of Nicholas II took place, society was below the poverty line, robberies and robberies were committed regularly, not only adults but also teenagers participated in the raids. The legislation inherited by the "new" government could not be applied and ensure order in the country, which is why on January 14, 1918, the SNK of the RSFSR issued the first decree "On commissions for minors accused of socially dangerous actions."

Due to the increased juvenile delinquency, the cases were considered in a shortened order, which contradicted the principles laid down by the tsarist system of criminal justice. The minor increasingly found himself in an unprotected position, since his case was considered in a shortened order, and the final decision depended on the ideological decision of the commission members.

Due to the significant loss of the adult population associated with the historical events of the beginning of the XX century, Institutions of Social Assistance for Minors were created under the commissions for juvenile Affairs. The commissions themselves were not organs of the court or investigation, but rather performed public oversight functions. Criminal cases involving minors were not in their jurisdiction and were effectively deprived of a fair trial within the framework of legislation. At the same time, the previously established age of criminal responsibility from 14 years remained.

In 1920, the SNK of the RSFSR issued a new edition of the Decree "On the cases of minors accused of socially dangerous acts", where it indicated that if the Commission on Juvenile Affairs recognizes the impossibility of applying medical and pedagogical measures, then the materials should be sent to court.

In 1922, the Criminal Code of the RSFSR was adopted, which consolidated the provisions of previously adopted Decrees and approved an expanded list of legal representatives: parents, close relatives of the victim or legal representatives, trade union commissioners, labor inspectors, members of the Board of defenders and representatives of the workers' and peasants' inspectorate for their affairs. However, the scope of their participation was limited, they could defend the interests of the victim only if it was necessary to support the prosecution, according to Article 55 of the Code of Criminal Procedure of the RSFSR ^[15]. There were also negative moments. For example, criminal cases involving minors had to be separated into separate proceedings and sent to the Commission on Juvenile Affairs, which, when making a decision, assumed the functions of a public prosecutor, without having legislative grounds for that.

Thus, on the one hand, the minor was vulnerable to the exercise of his rights, the procedural status was not defined, and the procedure of legal proceedings was complicated, and on the other hand, due to the fact that the consideration of the crime took place administratively, the injured person had no opportunity to file a civil lawsuit in order to restore material or moral damage.

The 1930s were marked by the "tightening of the screws", trials of enemies of the people took place, which brings tougher punishments to the criminal code, even in relation to minors, reducing the age of criminal responsibility to 12 years, and the age of a minor has ceased to be considered as a circumstance mitigating punishment. In 1935, the commissions on juvenile affairs were abolished, and the cases were transferred to the courts. The courts were recommended to conduct a number of show trials of minors, which were supposed to have an educational effect, but, since 1943, the legislator has been making attempts to return specialized colleges, in order to resolve the issue of placing the guilty person in an educational and labor colony, or to hand over to guardians. In fact, the trial of minors was not much different from the trial of adults, and the decisions of the courts were rather punitive and demonstrative.

After the death of I.V. Stalin in March 1953 The Presidium of the Supreme Soviet of the USSR issued a decree according to which a large number of prisoners, mostly political, were released from criminal liability, and the XX Congress of the CPSU in 1956 recognized Stalin's methods as lawlessness and a crime against the party, the state and society. After the congress, the Supreme Court was instructed to review criminal cases on conviction for counter-revolutionary crimes and rehabilitation of convicts.

            Against the background of political and social changes in the country, it was necessary to revise the legislation. In addition to the publication of the new Constitution of the USSR, the codes were also revised. So, in 1960, the Criminal Code of the RSFSR was issued, which is a major step towards strengthening the country's legality: the concepts of complicity, forms of guilt, insanity, etc. were more clearly formulated, the principles of humanism and justice were fixed, the maximum term of imprisonment was lowered from 25 years to 10 years, in special cases, penalties could be imposed up to 15 years of imprisonment, and the death penalty was defined as an exceptional and temporary measure of punishment.

            The changes also affected the age of criminal responsibility, it was raised by 2 years. According to Article 10 of the Criminal Code of the RSFSR, persons who were 16 years old before committing the crime were subject to criminal liability. Persons who committed crimes between the ages of 14 and 16 were subject to criminal liability only for a limited list of crimes contained in Part 2 of Article 10 of the Criminal Code of the RSFSR ^[16]. Thus, persons under the age of 14 were not subject to criminal liability. According to Part 3 of Article 10 and Article 63 of the Criminal Code of the RSFSR, provisions were fixed that if the court considers that the correction of a person who committed a crime under the age of 18 that did not pose a great public danger, it can apply compulsory educational measures to such a person ^[16].

On October 27, 1960, a new Code of Criminal Procedure of the RSFSR was adopted, which contained chapter III, which fixed the rights and obligations of participants in criminal proceedings. When considering a criminal case against a minor, the participation of a defender was mandatory from the moment the charges were brought. Amendments introduced in 1961 separated cases involving minors into separate proceedings both at the investigation stage and at the trial stage.

Since that period, the legislator has been turning his attention to underage participants in criminal proceedings as the most vulnerable group of persons. All legislative changes of that time focused on ensuring the rights of juvenile suspects and accused. Up until 2002, a large number of changes were made to the Criminal Procedure Code of the RSFSR concerning the rights and obligations of minor participants in criminal proceedings. In particular, it is possible to highlight: strengthening of guarantees of the rights of minors, the implementation of the principle of double representation of the accused; mandatory participation of a defender from the moment of indictment and the non-binding refusal of a minor from a defender for the bodies conducting criminal prosecution; the allocation of a criminal case to a separate proceeding in the case of a crime committed in complicity with adults; expansion of the subject of evidence in criminal cases in in relation to minors due to socially and personally characterizing information; the obligation of a preliminary investigation; the possibility of termination of a criminal case in connection with the transfer of materials to the commission on juvenile affairs, and later in connection with the use of coercive measures of educational influence; mandatory appointment of a forensic medical examination in case it is impossible to establish the age of a minor according to documents; introduction of a teacher into the criminal process etc. ^[17].

The conditional boundary from which the modern stage of criminal procedure legislation in relation to the legal status of minors begins is 2002, when the current Code of Criminal Procedure of the Russian Federation was adopted. This Code has made changes concerning the rights and obligations of minors, mechanisms for the termination of criminal prosecution, the collection of characterizing information of the guilty minor, the specifics of the interrogation, a teacher and a psychologist were involved in the interrogation and the procedural status of the legal representative of the minor was fixed.

Thus, based on the peculiarities of the normative consolidation of a particular model of criminal proceedings against minors, the entire evolutionary path of the formation and development of the latter in Russia can be conditionally divided into several stages: 1) from the beginning of the IX century to the end of the XVII century – characterized by the emergence of the norms of criminal procedure, the definition of the procedure for conducting an investigation; 2) From the end of the XVII century to the beginning of the XX century - the Tsarist period – the establishment of the age limit, as well as the origin and development of individual elements of the modern system of criminal procedure, the establishment of the institution of legal representation; 3) from 1917 to 1960 – the desire to protect the rights of a minor in criminal proceedings; 4) from 1960 to 2002 – the consolidation of the rights and obligations of participants in criminal proceedings and the introduction of categories of persons who could not be interrogated in the status of a witness; 5) from 2002 to the present - the addition of the rights of minor participants criminal proceedings and persons suffering from mental illness, including bringing these measures in line with international standards.