Criminal law regulation of the responsibility for the involvement of minors in the commission of crimes and other anti-social actions: historical aspects

Rushanyan Diana Arsenovna Postgraduate student; Department of Criminal Law and Criminology; Kuban State University 149 Stavropol str., Krasnodar, 350040, Russia pochta_193@list.ru

When studying aspects of the criminal law regulation of responsibility for the commission of a crime, it is often important to know one of its important components - the historical one, the analysis of which pursues several important goals and has a certain significance. Firstly, the history of the development of criminal legislation allows us to track the evolution of a specific rule of law, to comprehend its dynamics and interpretation. Secondly, through appropriate study, it is possible to assess the effectiveness of the application of legal norms in different periods, which helps to identify successful or, conversely, unsuccessful aspects of criminal legislation that can form the basis for the development of more effective modern regulations. Thirdly, an assessment of the degree of stability of the criminal legislation of the past can have a positive effect on its stability to the changing conditions of the present.

"Historia magistra vitae" (translated from Latin. "History is the teacher of life" (Cicero)) – the leitmotif of many retrospective studies conducted in the field of consideration of certain issues of criminal liability. The study of the criminal law regulation of responsibility for the involvement of minors in the commission of crimes and other anti-social actions, the development of which has gone from its isolated manifestations to the formation of an entire legal institution, is no exception.

The historical aspects of responsibility for involving minors in committing crimes and other anti-social actions are the subject of close attention of scientists, which include M.V. Ivanov, N.N. Kosova, A.I. Morozov, F.Yu. Petrov, Yu.E. Pudovochkin, A.V. Travnikov, N.P. Shevchenko, etc. Some issues of this topic were raised at the level of dissertation and monographic research by I.V. Litvinova ^[1], B.A. Mkrtychyan ^[2], T.A. Oleinikova ^[3], A.V. Osipyan ^[4] and other authors. At the same time, none of the scientific work carried out is comprehensive, that is, at the same time it does not reflect the issues of origin, formation, development and optimization of responsibility for involving minors in committing crimes and other antisocial actions. In addition, these issues have not yet been considered through the prism of the criminal law institute.

The analysis of pre-revolutionary criminal legislation in the relevant part traditionally begins with the study of such a legal act as Russian Pravda, the provisions of which were based on the norms of customary law and local customs, and not on a single codification of the written form: the rules were formed on the basis of traditions and customs transmitted orally. However, it did not contain any regulations protecting a minor from criminal involvement. The document only covered issues related to the property section, including shares intended for children in the order of legal inheritance and custody over them (Articles 92-98 of the Lengthy edition).

Like Russian Truth, other legal acts of Ancient Russia did not single out the figure of a minor as a special category of victims within the framework of the object of criminal law protection ^{[5, p. 49; 11, p. 13]}. Emphasizing this fact, E.B. Melnikova rightly notes that until the middle of the XIX century, childhood, which is a special protected period of human life, as a legal category (legal concept), did not exist in jurisprudence. Persons of minor age guilty of committing an offense were equated with adults acting as the subject of a crime ^{[6, p. 27]}. A vivid confirmation of this thesis is that in the XVII century. Although the first prohibitions related to involvement in criminal activity appeared (Articles 12 and 19 of Chapter XXII of the Council Code of 1649), however, they extend their effect to both adults and adults, age is not specified in legal norms.

The legislation of the reign of Peter the Great was indifferent, in the key of the problem under consideration. The military Article, published in 1715, did not contain norms providing for responsibility for involving minors in illegal activities, which, for the most part, was due to the focus of this legal act on regulating issues related to military service, establishing responsibility for military misconduct, violation of military discipline and organization of military units.

A number of important changes in the field under consideration occurred in connection with the adoption of the Code on Criminal and Correctional Punishments of 1845 (hereinafter referred to as the Code of 1845), which was "published" in the "era of great reforms" initiated by Alexander II. It should be noted that this legal document had a significant impact on the subsequent development of Russian criminal law, and its normative content had long-term consequences. For the first time in the history of the development of Russian criminal legislation, it regulated norms that recognized the direct involvement of minors by adults in the commission of a crime as an independent criminal act. These norms were mainly included in sections VIII and XI of the Code of 1845. So, for example, in the specified legal act there was such a norm-prohibition as inducement or inducement by persons supervising minors and minors of the latter to "lewdness". The corresponding "involvement" on the part of parents, guardians, as well as other relatives was prohibited to other "vices", which was fixed in Article 993. Article 998 of the 1845 Code prohibited the pimping of children if it was carried out by their parents. Moreover, in note I to this norm, it was noted that this is expressed in an agreement to commit "adultery". In Article 1587, a ban was established on the deliberate involvement of parents of their minor children in any crime in which they themselves did not directly participate.

In the content of these norms of law, it can be noted that the appropriate involvement was often provided by parents, since in the second half of the XIX century. the power of such over their children was absolute. This approach contradicted the state interests, and therefore the legislator had to limit it to the framework of the law. Thus, the latter developed rules that established limits (restrictions) for parents – finding in their independent management only the sphere of morality, ensuring the welfare of children, family and the state ^{[7, p. 189]}.

After almost twenty years, "parental" responsibility was reflected in the provisions of the Statute on Punishments imposed by Magistrates, adopted in 1864 (hereinafter referred to as the Statute of 1864). In Article 51 of this document, responsibility was provided for parents or persons with custody of children who allowed such to beg in the form of a petition alms. Moreover, responsibility was increased if the commission of this offense grew from one-time manifestations into a craft, i.e. into a professional occupation, but not in its social sense.

In the edition of 1906, the Charter of 1864 was supplemented with new articles that took under the protection of the health of minors, which could deteriorate due to the permission of such to consume alcoholic beverages and work in establishments where such products are bottled. In particular, a ban was established on the admission of these persons to drinking strong drinks in establishments intended for the sale of such drinks (Article 51.10). In addition, in accordance with Article 51.14, owners of places belonging to establishments of the tavern trade, in which strong drinks were sold by persons with the status of servants, could be held accountable, under the age limit.

In Article 144.1 of the Charter of 1864, children were differentiated into two categories: minors and minors. Moreover, the essential differences between them were not indicated. This provision prohibited these persons from being left without supervision by those who were responsible for him in accordance with the decision of the judicial or investigative authorities. However, the perpetrators could only be brought to justice if it was established that the child, who was freed from the restriction in the form of supervision, had committed either a criminally punishable act or a less serious crime. Of course, there was no direct talk of criminal involvement in Article 144.1 of the Charter of 1864, however, the legislator of that time considered that the sign of abandonment without supervision was a determinant capable of causing juvenile delinquency.

A further expansion of the norms related to the involvement of minors in criminal and other antisocial activities occurred in 1903. During this period, a new Criminal Code was adopted (hereinafter referred to as the 1903 Code), which, despite the fact that it never fully entered into force, still contained certain norms that were interesting from the perspective of the topic under consideration. For example, paragraph 2 of Article 420 of the legal act established responsibility for the commission of crimes by guilty persons in the form of: 1) the conversion of a person under the age of 17 to begging or other immoral occupation; 2) the return of the specified person for the realization of this antisocial goal. Moreover, the legislator normally listed the range of subjects of these illegal acts. It included parents, guardians, guardians, or other persons supervising minors. Paragraph 3 of the same article prohibited forcing a person under the age of 21 to marry. Moreover, the crime was considered over if such a marriage, as a result of abuse of power by parents or guardians, took place.

Responsibility for an act similar to Article 144.1 of the Charter of 1864 was also established in Article 423 of the 1903 Code, however, firstly, inaction on the part of those responsible for supervision did not come from a person under the age of 17, but from a minor or other supervised person, and secondly, subject to the occurrence of consequences that were expressed in the commission of a simple or serious crime by the latter.

A number of articles of the 1903 Code provided for liability for "indecency", for committing sexual illegal acts against minors. This group of crimes was called such in connection with the eponymous title of Chapter XXVII ("On obscenity") of the legal act, which regulated Articles 513-529. It is noteworthy that they were graded by age:

– child – a person under the age of 14;

– minor – a person between the ages of 14 and 16;

– other persons aged 16 to 21 years and under 21 years without a lower age threshold ^{[5, p. 50]}.

Based on the above, it can be understood that in the time interval – the middle of the XIX – the beginning of the XX centuries – the criminal legal protection of minors, their rights and freedoms, was carried out at a sufficiently developed level. In criminal legislation, a special legal institution was formed related to the protection of the category of persons in question, in which the emphasis was on the involvement of young people in criminal and (or) immoral activities. However, despite the fact that these issues were attractive to the legislator of that time, they still required detailed study.

The changes in Russia that took place at the beginning of the XX century, caused by socio-economic and political instability in the state, led to an increase in the level of child crime, an increase in the number of criminal acts in which minors were participants ^{[8, p. 232]}. These circumstances accelerated the process of forming qualitatively new legislation in the field of criminal law protection of minors from their involvement in crimes and antisocial actions by adults.

During the revolutionary changes taking place in our country, the Decrees of January 14, 1918 and March 04, 1920 were adopted. Thus, on the basis of the provisions of the latter, the "Instruction to commissions on juvenile affairs" was formed. It stipulated the issues of joint participation of a minor and an adult in the commission of a crime. The role of the latter in such participation was particularly noted, which could be expressed in the form of incitement, persuasion, complicity, connivance and other acts (art. 13). There was also an instruction stating that in case of detection of signs of adult participation in a crime committed by a person who has not reached the age of majority, the relevant information about the first one should be transmitted by the commission to the bodies of the court and investigation ^{[9, p. 125]}.

At the stage of formation of the Soviet criminal legislation, the norms on responsibility for involving minors in committing crimes and other anti-social actions were not sufficiently developed, and their quantitative representation in criminal laws was characterized by isolated manifestations. For example, in the Criminal Code of the RSFSR of 1922, in this regard, only a ban on the involvement of a minor in prostitution was established. Moreover, responsibility for this act was increased in accordance with Article 171. In Article 73.2 of the Criminal Code of the RSFSR of 1926, responsibility for forcing minors to engage in prostitution was established in a similar form. At the same time, this legal act, unlike the previous criminal law, has protected many more cases of appropriate involvement of minors. So, the specified norm, in addition to the indicated, prohibited: 1) incitement or involvement in various kinds of crimes; 2) coercion to engage in speculation, begging, etc. And in the second case, the list of such activities was open.

Responsibility for the commission of the above-mentioned crimes was also mentioned in paragraph 2 of the resolution of the Central Executive Committee and the Council of People's Commissars of the USSR dated April 07, 1935, designed according to the same form of legislative technique as Article 73.2 of the Criminal Code of the RSFSR of 1926.

During the further development of Soviet criminal legislation, the safety of minors was ensured by increasing means of criminal law protection, which was associated with the adoption of the new Criminal Code of the RSFSR in 1960. Thus, in this legal act, provisions on the appropriate involvement of minors were provided for in Articles 210, 210.1, 210.2, 224.2. In the first of them, liability was provided for involvement in: 1) criminal activity; 2) prostitution; 3) begging; 3) gambling; 4) drunkenness, as well as for the use of minors for the purposes of parasitic existence. It should be noted that despite the clear prevalence of the antisocial actions listed in the norm, the Soviet legislator reflects in the title of Article 210 of the Criminal Code involvement in criminal activity, which, in essence, may not be antisocial manifestations. Thus, it becomes obvious that the title of the analyzed article is much the same as its content.

Responsibility for bringing (to a state of intoxication) a minor, acting as a form of involvement, understood in a broad sense, appeared in Article 210.1 of the Criminal Code of 1960. Moreover, the types of intoxication, depending on the substances that caused such a condition, were not specified in the law. However, in Article 210.2 of the Criminal Code of the RSFSR of 1960, there is a clarification in this context: the involvement of persons under the age of majority in the non–medical consumption of intoxicants - medicines and other non-narcotic drugs was recognized as criminal.

The inducement to consume such (narcotic drugs) is referred to in Article 224.2 of the Code under consideration, as a circumstance aggravating the responsibility of the guilty person.

In general, it can be noted that in the Criminal Code of the RSFSR of 1960, the norms regulating responsibility for involving a minor in committing a crime and other antisocial actions received a certain order in the arrangement and communication ^[10] with each other, i.e. they were clothed in a system. The formation of this system was a prerequisite for the further development of the institute in this area, as evidenced, firstly, by the introduction of a separate chapter (20) into the Criminal Code of the Russian Federation in 1996 on crimes against the family and minors, and secondly, the current expansion of the quantitative composition of crimes related to the involvement of minors in crime and other antisocial actions (for example, Articles 150, 151, 151.1, paragraph "c" of Part 4 of Article 228.1, paragraph "a" of Part 3 of Article 230, paragraph "b" of part 2 of Article 230.1, part 3 of Article 240, Article 240.1, paragraph "c" of Part 2 of Article 241 appeared, Part 2 of Articles 242, 242.1, 242.2, part 2 of Article 159). This state of affairs seems to be connected with the adoption in 1993 of the Constitution of the Russian Federation, which placed childhood under state protection (Part 1 of Article 38) and the entry into force for the Russian Federation in 1991. Declarations of human and Civil Rights and Freedoms.

Having analyzed the historical aspects of the topic under consideration, we can propose the following periodization:

1. The period of the origin of responsibility for the involvement of minors in criminal and other antisocial activities (mid–XIX - early XX centuries). It is characterized by the emergence of the first norms providing for responsibility for the direct involvement of minors by adults in committing crimes, begging, drinking alcoholic beverages, working in institutions that pour it, etc. Moreover, the corresponding involvement was often provided by parents whose power over children was absolute. During this period, for the first time, children are differentiated into two categories: minors and minors.

2. The period of formation of the institution of responsibility for the involvement of minors in the commission of a crime and other antisocial actions (from 1960 to 1996). Its peculiarity is that the norms governing responsibility for the involvement of a minor in the commission of a crime and other antisocial actions have become orderly, formed into a system. Their multiplicity indicates the formation of a criminal law institution.

3. The period of development and optimization of the named criminal law institute (from 1996 to the present day). It is connected with the adoption in 1996 of the Criminal Code of the Russian Federation, which expanded the quantitative composition of crimes related to the involvement of minors in committing crimes and other antisocial actions.