The Insignificance of the Act in Criminal Law and the Social Danger of the Individual

Slepnev Fedor 4th year student, Faculty of Law, Federal State Autonomous Educational Institution of Higher Education "NATIONAL RESEARCH UNIVERSITY "Higher School of Economics" 123022, Russia, federal city of Moscow, Moscow, lane. Bolshoy Trekhsvyatelsky, 3 fyuslepnev@edu.hse.ru

The insignificance of the act acts as a legal institution reflecting the desire of the legislator to more accurately assess the relevance of the application of criminal law measures. So, if there are signs of a crime in the act, a person can be brought to criminal responsibility, but at the same time it is necessary to decide on the expediency of such involvement ^{[1, p. 135]}.

         In the current version of the Criminal Code of the Russian Federation, the institute of insignificance is fixed in Part 2 of Article 14 (Criminal Code of the Russian Federation No. 63-FZ of 13.06.1996 (ed. No. 63-FZ of 25.03.2022) // Collection of Legislation of the Russian Federation.  1996. No. 25. St. 2954.). Formulating a legal norm, the legislator differentiates minor acts and crimes on the basis of the public danger of what he has done, but does not provide specific criteria, focusing on which the courts could most accurately apply the proposed institution. The works of Ch. M. Bagirov, A. Y. Gordeev, V. I. Tyunin and other scientists are devoted to the problem of determining criteria and signs of insignificance of an act ^{[2, 3, 4]}. However, the question of taking into account personality traits when distinguishing minor acts and crimes remains open.

         Considering the Soviet criminal legislation, it can be traced that earlier the legislator tried to formulate a certain criterion for differentiating minor acts and crimes. Article 6 of the Criminal Code of the Russian Soviet Federative Socialist Republic (hereinafter referred to as the RSFSR Criminal Code) of 1926 firmly linked insignificance with the absence of socially dangerous consequences (Resolution of the Central Executive Committee of 22.11.1926 "On the introduction of the Criminal Code of the R.S.F.S.R. edition of 1926" (together with the "Criminal Code of the R.S.F.S.R.") // SPS "ConsultantPlus". URL: http://www.consultant.ru (accessed: 01.09.2022)).

However, in the future, the position of the legislator has changed. Substantial changes can be observed in the Criminal Code of the RSFSR in 1960, where there is no longer a clear link between the public danger of consequences and insignificance, which has been preserved in the modern version of the Criminal Code ("Criminal Code of the RSFSR" (approved by the Supreme Soviet of the RSFSR 27.10.1960) (ed. from 30.07.1996) // SPS "ConsultantPlus". URL: http://www.consultant.ru (accessed: 01.09.2022)).

         This uncertainty of the legislator causes instability of law enforcement practice. Despite the fact that the Judicial Board for Criminal Cases of the Supreme Court of the Russian Federation (hereinafter referred to as the Supreme Court of the Russian Federation) in the Definition of 23.06.2020 in the case N 46–UD20-9 formulated a position according to which the personality traits and post-criminal behavior of the perpetrator are not circumstances characterizing the insignificance of the act, law enforcement practice has not become uniform (Definition of the Judicial Board for Criminal Cases of the Supreme Court of the Russian Federation of 23.06.2020 in the case N 46-UD20-9 // SPS "ConsultantPlus". URL: http://www.consultant.ru (accessed: 01.09.2022)).

         Thus, the Sixth Court of Cassation of General Jurisdiction in the Ruling of 28.10.2020 in case No. 7U-14579/2020 [77-2678/2020], when deciding to recognize the act as insignificant, agreed with the position of the court of appeal, taking into account the data on the identity of the accused person (The ruling of the Sixth Court of Cassation of General Jurisdiction of 28.10.2020 in case No. 77-2678/2020 // Website of the Sixth Cassation Court of General Jurisdiction. URL:  https://goo.su/iilQ4Z3 (accessed: 02.09.2022)).

         The Biysk City Court of the Altai Territory, in a Resolution dated 08.06.2022 in case No. 10-33/2022, decided to recognize the deed as a minor act, taking into account the personality characteristics of the accused person, namely: family and financial situation (Resolution of the Biysk City Court of the Altai Territory dated 08.06.2022 in case No.10-33/2022 // Biysk website city Court of the Altai Territory. URL: https://biyskygoralt.sudrf.ru/modules.php?name=sud_delo&srv_num=1&name_op=doc&number=170880506&delo_id=1540006&new=0&text_number=1 (accessed: 02.09.2022)).

         Moreover, the definition of the Judicial Board of the Supreme Court of the Russian Federation, mentioned above, competes with the legal position of the Constitutional Court of the Russian Federation (hereinafter referred to as the Constitutional Court of the Russian Federation), formulated in the resolution of the Constitutional Court of the Russian Federation of February 10, 2017 N 2–P, where the court explicitly states that such personality traits as the immunity of a person to a previous measure of responsibility, repeated the nature of the commission of an offense may serve as grounds for criminalizing the relevant act (Resolution of the Constitutional Court of the Russian Federation of 10.02.2017 N 2-P "In the case of checking the constitutionality of the provisions of Article 212.1 of the Criminal Code of the Russian Federation in connection with the complaint of citizen I.I. Dadin" // SPS "ConsultantPlus". URL: http://www.consultant.ru (accessed: 01.09.2022)).

         The doctrine of criminal law also does not have a unified approach with regard to the issue of taking into account personality traits when differentiating minor acts and crimes. V. V. Stepanov points out that taking into account personal data is necessary ^{[5, p. 186]}. While O. O. Novik adheres to the opposite point of view, having the conviction that taking into account personal data when resolving the issue of the insignificance of an act leads to a violation of the constitutional principle of equality of all before the law ^{[6, p. 349]}. Y. E. Pudovochkin points out that the characteristics of the personality of the perpetrator can be taken into account only within the individualization of punishment ^{[7, p. 62]}.

     Accordingly, the relevance of the research topic goes back to the existing uncertainty in law enforcement practice, the doctrine of criminal law regarding the issue of taking into account the character and personality traits when differentiating insignificant acts and crimes, as well as the need for further research and clarification of the criteria for the insignificance of the act. 

         Let's move on to the substantive part of the study. Substantiation of the position according to which the properties and qualities of a person should not be taken into account when differentiating insignificant acts and crimes, it is worth starting with a study of the legal nature of the insignificance of the act through the prism of interpretation of legislative structures that consolidate the proposed institution.

So, it would be fair to say that there is a connection between the personality, the qualities of this person, the act that was committed and the criminal legal assessment that the court will formulate based on the results of consideration of a particular case.

However, the meaning of the institution of insignificance is to exempt from criminal liability a person who has committed an act that does not have a public danger. In other words, within the framework of the institute, an act is considered and analyzed for the absence of public danger, due to the absence of harmful negative consequences, or for other reasons. Such an understanding of the essence of the institution of the insignificance of an act can be made by evaluating the legal technique of constructing the norm enshrined in Part 2 of Article 14, where the legislator, in accordance with the literal interpretation, understands by an insignificant act an action or inaction that does not have a public danger.

Accordingly, considering a person as a category conceivably separable from a criminal act, it can be concluded that the nature and properties of a person cannot act as a criterion for distinguishing insignificant acts from crimes, since within the framework of the institute of insignificance, the law enforcement officer, within the meaning of the criminal law, must evaluate precisely the qualities and properties of the deed (the public danger of the act and the public danger of the consequences).

Another argument in favor of the position of the inexpediency of taking into account personal data when differentiating minor acts and crimes is related to the general theoretical representation of the doctrine of criminal law on the principles of criminal responsibility.

         Thus, personality traits cannot influence the resolution of issues of establishing criminal responsibility ^{[8, p. 227]}.

The public danger of a person, being an objective category, should undoubtedly be assessed when choosing the type and size of criminal impact, since the public danger of a person lies not only in the fact that a person was able to commit a criminal act, but also in the fact that he is able, under certain circumstances, to do the same again.

         Accordingly, the accounting of personal data is necessary within the framework of individualization of punishment, when the issues of assigning a proportionate and fair punishment are resolved, contributing to the achievement of the goals of criminal responsibility: the re-education of the guilty person and the prevention of subsequent crimes. However, this reflects a certain limit of the criminal-legal significance of the character and personality traits of the perpetrator.

         It is worth agreeing with the position of Yu. A. Demidov, according to which the public danger of the criminal's personality is determined by the public danger of the act. Thus, in case of loss of the public danger of the act, the negative quality of the person also loses its criminal legal significance ^{[9, p. 92]}.

         The proposed reasoning is related to the general principle of establishing criminal responsibility: only acts are criminalized. In the opposite case, we would be faced with a violation of the constitutional principle of equality of all persons before the law, from the point of view that the law enforcement officer would recognize as criminals certain categories of persons with specific social or psychophysical qualities that, in their opinion, are a public danger.

         Accordingly, if personality traits cannot influence the resolution of issues of establishing criminal responsibility, since only acts are subject to criminalization, and personality traits characterized as socially dangerous are determined by the social danger of the act, then it can be argued that personal data also cannot influence the refusal to bring to criminal responsibility due to the insignificance of the act.

         Returning to the existing discussion in the doctrine of criminal law regarding the issue of taking into account personality traits when differentiating minor acts from crimes, it is still worth considering a rather popular point of view reflected in the work of V. V. Stepanov.

         Thus, the author argues that the lack of consideration of personal data in the differentiation of minor acts and offenses leads to the deprivation of the law enforcement officer of one of the criteria that allows for more accurate application of the proposed institution. The scientist also sees the prospect of a certain abuse of law, since it creates an opportunity for whole categories of citizens with stable antisocial attitudes to systematically commit actions that have signs of a crime, but due to their insignificance are not legal violations and thus cause more and more harm to protected social values and at the same time not be subjected to legal measures ^{[5, pp. 187-188]}.

         In my opinion, the proposed negative consequences take place exclusively within the framework of the concept, according to which the recognition of an act as insignificant mediates the impossibility of bringing a person to another type of responsibility, since it is assumed that there is no corpus delicti in principle. This position was popular during the Soviet period, and is also reflected in some works of modern authors, for example, V. N. Vinokurov writes that insignificance is characterized by an absolute absence of public danger, which limits any legal impact and does not allow bringing a person to administrative or other responsibility ^{[10, p. 76]}.

         However, the proposed concept of the legal nature of insignificance is not, in my opinion, correct. Considering the insignificance of an act from the point of view of the legal technique of constructing a legal norm enshrined in Part 2. Article 14 of the Criminal Code of the Russian Federation, it can be noted that the legislator does not impose the above restrictions, describing an insignificant act as an action or omission that is not a crime.

Such an understanding of the essence of the insignificance of an act is indisputably correct, since actions (inaction) can be repeatedly graded according to the degree of public danger and differentiated into crimes and other types of offenses. Accordingly, such an approach assumes a wider range of ranking of offenses and admits that the same act may be insignificant within the framework of criminal law, but from the point of view of the norms of another branch of law, it constitutes an offense, which mediates the need for legal measures.

The proposed position is also confirmed by the practice of the Constitutional Court of the Russian Federation, in particular the position formulated in the Ruling of July 16, 2013 N 1162-O, where the court indicates that if there are sufficient circumstances, a person who committed a minor act may be brought to another type of responsibility (administrative or disciplinary) (The Ruling of the Constitutional Court of the Russian Federation from 16.07.2013 N 1162-O "On refusal to accept for consideration the complaint of citizen Filimonov Dmitry Ivanovich for violation of his constitutional rights by part two of Article 14 of the Criminal Code of the Russian Federation" // SPS "ConsultantPlus". URL: http://www.consultant.ru (accessed: 03.09.2022)).

Despite the theoretical understanding of the problem of taking into account the personality traits of a person when differentiating insignificant acts and crimes, the question remains open about the practical implementation of the approach according to which personality traits should not be taken into account when the court examines an act for insignificance.

To return to the construction of the institute of insignificance, reflected in the Criminal Code of the RSFSR of 1926, where the absence of socially dangerous consequences in the form of material or non-material harm was the exclusive criterion for the insignificance of an act, does not seem theoretically justified.

As M. I. Kovalev points out, only the statement of the continuity of insignificance and the absence of socially dangerous consequences means the absence of any offense ^{[1, p. 139]}. Accordingly, the exclusivity of the proposed criterion for differentiating insignificant acts and crimes is possible only in the paradigm of understanding an insignificant act as an action (inaction) that does not have a social danger in principle. However, as it was indicated in the paper earlier, such an understanding of insignificance has no theoretical justification and does not meet the current trends in the development of criminal legislation within the framework of the proposed institute.

The exclusivity of socially dangerous consequences as a criterion of an insignificant act is also questioned from the point of view of the analysis of modern law enforcement practice. V. N. Vinokurov notes that when deciding on the application of norms on insignificance by courts, in addition to the public danger of consequences, the purpose and method of committing the act are taken into account ^{[10, p. 79]}.

F. N. Sotskov, within the framework of the significance of alternative criteria for the insignificance of an act, goes further and cites individual cases where courts distinguish between an insignificant act and a crime, without taking into account the public danger of consequences and take into account the purpose and method of committing the act as independent criteria that determine the insignificance of the deed ^{[11, p. 68]}.

Accordingly, it is necessary to find another way of leveling the consideration of personality traits by the courts when applying the norm on the insignificance of the act. One of the rational ways can be a change in the norm devoted to the insignificance of the act and the introduction of a direct ban on taking into account the character and characteristics of the individual. Such a method, on the one hand, will be able to effectively consolidate the theoretically justified approach of the impossibility of taking into account personality traits when differentiating minor acts and crimes, and on the other hand, it will ensure the flexibility of the norm and the possibility of further evolution of law enforcement practice within the framework of identifying new criteria for a minor act.

Thus, summarizing all of the above, we can draw the following conclusions:

1. In the course of the study, an approach is theoretically justified, according to which personality traits should not be taken into account when differentiating minor acts and crimes.

2. For the purpose of practical consolidation of the proposed approach, the current version of Article 14 of the Criminal Code of the Russian Federation should be amended and Part 3 should be introduced with the following content: "Circumstances related to the identity of the person who committed the act and not directly related to the deed are not circumstances characterizing the insignificance of the act."

3. A change in criminal legislation within the framework of the insignificance of the act will have a positive impact on law enforcement practice, contributes to its uniformity.