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§ 2. Development of measures of the prevention of crimes against participants of the criminal trial during Soviet and Post-Soviet time

Together with formation of the Soviet state the Soviet socialist right was formed. Its first sources were decrees, decisions and decisions of the All-Russia congresses of councils, VTSIK and Sovnarkoma.

The first certificates of the Soviet criminal legislation planned only the general and mainstreams of a policy of the Soviet state in struggle with criminally - stju [383]. Thus neither about any "reception" of the bourgeois right, nor about any continuity of the right, legal ideology could not be and speeches [384].

In 1918 by the Decree № 3 «About court» application of the old laws was forbidden, the newly founded vessels were recommended to be guided by decrees of the Workers' and Peasants' government and socialist conscience. The Supervising beginnings on criminal law of RSFSR were rather important certificate defining essence of justice of that time, approved NKJU on December, 12th, 1919 In section «About criminal justice» it was specified, that the Soviet criminal law in RSFSR is carried out by bodies of the Soviet justice (the people's court and revolutionary tribunals) [385].

In connection with carrying out during a life of a principle of responsibility of officials and citizens for encroachments on interests of justice on November, 24th, 1921 SNK RSFSR were accepted by the Decree «About punishments for false denunciations» according to which «persons came under to responsibility for false denunciations judicial and the investigating authority about fulfilment by the concrete person of a crime and for the false testimonies given by the witness, the expert or the translator at inquiry, a consequence and proceeding on business» [386].

The Criminal code of RSFSR became the major source of criminal law in the first five-years period after October revolution 1922 As it was specified in Decision VTSIK about introduction in action UK RSFSR, it has been accepted «with a view of a protection of the Workers' and Peasants' state and the revolutionary law and order from its infringers and socially dangerous elements and an establishment of firm bases of revolutionary sense of justice» [387]. In UK RSFSR 1922 of the chapter specially devoted to responsibility for crimes in sphere of the criminal trial, was not [388]. They were in four various heads providing the criminal liability for fulfilment of counterrevolutionary crimes, crimes against an order of management, malfeasances and crimes against a life, health and advantage lich - nosti [389]. Later the Decision of 2nd session VTSIK of X convocation from July, 10th, 1923 UK RSFSR have been added by the item 1922 104 and, providing the criminal liability for evasion of the witness, the expert, the translator and understood from performance of the duties assigned to them, and item 104 according to which responsibility for illegal announcement of data of preliminary investigation or inquiry was established, and and SNK from August, 25th, 1924 was entered by Decree VTSIK responsibility for evasion from performance of the duties of jurymen [390].

The edition of Fundamental principles of the criminal legislation of the USSR and union republics of 1924 has caused in the adaptation of republican criminal codes to the all-union legislation. It was necessary to review them from this point of view those principles which have been fixed in the all-union criminal legislation.

For these reasons in November, 1926 has been accepted, and since January, 1st, 1927 the new Criminal code of RSFSR which also did not contain the special chapter about crimes against public justice is installed. An encroachment on interests of justice were considered as other crimes against an order of management [391].

After October events of 1917 questions of the prevention of crimes were investigated mainly thanks to works of pre-revolutionary scientists. It is necessary to carry M.N.Gerneta's works which it is fairly possible to name the first criminologist to number of the most serious researches of problems of crime control, acquainted both pre-revolutionary, and the Soviet society with social and economic and other factors of criminality and its prevention offering concrete measure. Generalisation and promulgation of statistical data on crimes, including encroaching on justice [392] became its huge merit. The scientist has analysed the enormous statistical material covering the majority of the countries of the world from time when studying of these questions has begun, to second half 20th of XX century the [393] Researches foreseen by M.N.Gernetom, and also A.A.Herzen zonom, V.I.Kufaevym, A.S. SHljapochnikovym and other scientific - criminologists of that time, have been curtailed in the beginning of 30th of last century as representatives of public authorities have counted pre - stupnost as a vestige of the past and its studying declared unnecessary and even ideologically unrestrained.

In the end of 50 - the beginning of 60th of XX century the researches connected with questions of the prevention of crimes, have renewed in full volume and the fundamental works devoted to actual problems of crime control began to appear. At this time the first theoretical works devoted to questions of studying of criminality, the reasons and the conditions promoting it, the person of the criminal and another kriminologicheskim to problems have been published. During the same period the Criminal code of RSFSR has been accepted 1960 in which crimes against public justice have been allocated in the separate chapter. As specifies JU.I.Kuleshov, criminally-rule of law, included in the head about crimes against public justice, not only protected interests actually judicial business, but also protected lawful activity of officials and the citizens promoting delivering justice [394].

In UK RSFSR 1960 the legislator has gone on a way of differentiation of the criminal liability for crimes against public justice, more accurate description of structures of their signs, has excluded a number of the acts which are not representing to the big social danger, has entered responsibility for acts which have not been provided by previous codes. For example, in UK RSFSR have been included such new structures of crimes as attraction obviously innocent to the criminal liability, compulsion of the witness or the victim to a summer residence of false testimonies or the expert to a summer residence of the false conclusion or payoff of these persons, etc. [395] Thereby the legislator has expanded the list of participants of the criminal trial, the rights, freedom and which legitimate interests came under criminally-right protection 1960.

In proceeded during the Soviet period kriminologicheskih researches by scientists conceptual positions about the criminality prevention, of interrelation of elimination or easing of the reasons and the conditions promoting fulfilment of crimes with influence on the person of the criminal were developed and improved. So, A.B.sugar allocated the subjective (psychological) circumstances influencing formation of criminal behaviour (temperament, character, strong-willed and emotional properties of the person it.p.) and objective (external) factors (lacks of administrative activity, the is formal-bureaucratic relation to needs of workers, the inadequate behaviour of other persons promoting fulfilment of crimes, etc.) [396]. The scientist believed, that studying of the person of the criminal has the big scientifically-informative and practical value for the successful decision of all complex of the questions connected as with a concrete case of committing a crime or formation of the person on a criminal way, and with the general problems of crime control and the prevention of crimes [397].

In the same years about value of research of the person of the criminal with a view of the prevention of crimes spoke also A.D.Dolgova in which opinion studying of the person of the criminal to the criminologist is important because to warn crimes it is possible, influencing not only on an environment, but also on the person, and also creating optimum variants of interaction of the person and Wednesday [398].

The considerable contribution to research of the person of the criminal with a view of the prevention of crimes have brought also J.M.Antonjan, A.A.Gertsenzon, P.S.Dagel, N.S.Lejkina, N.A.pod, V.D.Filimonov and many other

Kriminologichesky interest is represented also by K.E.Igosheva's judgements which gave special attention to the social control in maintenance of the general crime prevention. From the point of view of the scientist, methods of the general preventive maintenance represent system of ways of purposeful influence of social subjects on kriminogennye factors, the reasons of criminal displays and the conditions promoting fulfilment of crimes, and also on consciousness and behaviour of members of a society. It differentiated such methods on economic, sociopolitical, state-legal, is social-psychological, cultural-educational and special [399]. By means of the social control in K.E.Igoshev's various fields of activity suggested to eliminate a various sort criminality determinants (economic, political, cultural-moral, etc.).

K.E.Igoshev and G.M.Minkovsky considered crime prevention as activity of the state bodies, the public, separate citizens, purposeful on elimination of the reasons generating offences, and conditions, to it promoting, on revealing and elimination of deformations of the person which, time having arisen, directly forms motivation pravonarushajushchego behaviour [400]. And, G.M.Minkovsky gave huge value to measures of special preventive maintenance. From its point of view, underestimation of value of exact definition of a subject and a place special kriminologicheskoj preventive maintenance can entail in practice of educational work and crime control a number of difficulties [401].

A.G. The doctor, suggesting to reveal and eliminate the reasons generating crimes, and the conditions promoting their fulfilment, allocated two basic components of such activity. It is the general preventive maintenance representing revealing and elimination of the objective (external) reasons and conditions, and the individual preventive maintenance which subject are the direct (subjective) reasons of crimes and the conditions promoting their fulfilment, connected with the concrete person [402].

A.E.Zhalinsky in the activity directed on the prevention of crimes, also a close attention gave to research of their reasons and conditions, believing, that «activity under the prevention of crimes inseparably linked with a condition and character of the factors generating crimes, including features of the person, with a condition, structure and dynamics pre - stupnosti» [403].

On expediency of revealing of causes of crime and conditions, to it promoting, specified also I.I.Karpets. Defining criminality as the social phenomenon, he considered, that for its prevention basic value has division of causes of crime into the general and concrete, and also allocation of the conditions promoting fulfilment of crimes [404]. I.I.Karpets's Great value gave to planning of measures of crime control, noticing what to operate criminality it is impossible, but it is possible and it is necessary to operate on the basis of the deep scientific analysis process of struggle against it. It is reached, first of all, by planning of such struggle, the constant control over actions under the prevention of crimes [405].

About necessity of planning, and also forecasting of the measures directed on crime control, wrote also V.K.Zvirbul. He believed, that validity and a system effectiveness of the prevention of criminality, a coordination of all links (subsystems), correct definition of the problems which are coming under to the decision, and means of their decision in many respects depend on completeness and accuracy: the forecast of tendencies of a condition and structure of criminality depending on changes of a complex of the reasons and the conditions influencing it; planning of preventive activity [406]. According to V.K.Zvirbulja, the prevention of criminality as an independent direction should join in complex social planning which, being a component of the plan of social and economic development, gave the chance to involve in activity under the prevention of criminality various strata of society. Superiority among subjects of preventive activity had labour kol - lektivy [407].

In 60 and the next years XX century criminologists, recognising the structural criminal pattern, allocated its separate kinds on the various bases, for example, violent, mercenary, state, recurrent, etc. Object kriminologicheskogo studying became also the groups of crimes in particular connected with a drug trafficking, made foreign subjects, etc. Nevertheless, characteristics of cumulative offences against participants of the criminal trial as independent phenomenon during Soviet time were not investigated.

Begun in Russia in the end of XX century the judiciary reform has demanded strengthening of criminally-legal guarantees of independence of the judicial authority in the course of justice realisation. It has found reflexion in perfection of system of structures of crimes against public justice which in the late eighties has been added by norms about responsibility for intervention in the permission of lawsuits (item 176.1), about threat concerning the judge and the juryman (item 176.2), about the insult of the judge or the juryman (item 176.3) and

Other [408] By this time in kriminologicheskoj to a science ideas about package approach to working out of means and methods of the prevention of criminality develop. So, according to S.V. Borodino, package approach to crime control questions is caused by that it is an interdisciplinary problem in which decision the contribution criminal brings, ugolovnoprotsessualnoe, the corrective-labour legislation, and also the recommendations developed by criminology, criminalistics, psychology, pedagogics and many other things the parties of knowledge [409]. This thought S.V. Borodino it is especially actual for research of problems of the prevention of crimes against participants of the criminal trial as without knowledge of criminal trial, the criminalistics and other sciences cannot be developed and introduced in practical activities of a measure of the prevention of the specified criminal actions.

Most acute problems of the prevention of criminality as a whole and against participants of the criminal trial in particular began to be felt in days of reorganisation and postreorganization time. About it has in detail enough written V.V. Luneev, establishing, that the general trend of crime control these and next years is appreciable decrease in the is social-legal control of criminality owing to is social-legal feebleness before kriminalom and unreasoned humanity to dangerous Russian criminals who except a brute force perceive nothing [410]. The author accurately defines crime control tendencies last years which are characteristic for counteraction to any criminal displays. Concerning the prevention of crimes against participants of the criminal trial it is necessary to allocate the following tendencies specified to it:

Some our laws on a number of serious positions will not be adjusted with our realities and traditions, not provided organizational and economically, that essentially reduces efficiency of action of the legislation and crime control as a whole;

For criminology and sociology on which basis it will be organised crime control, ideological dogmas, and actual criminal realities, therefore a society are more important not requires continuous system studying of these realities, their tendencies and laws which develop on the basis of existing probelnogo or kriminogennogo legislations;

Now criminals operate more effectively, than bodies pravoohrany, therefore are necessary serious personnel reforms, instead of simply structural shifts of superfluous administrative structure in the Ministry of Internal Affairs and other law enforcement bodies;

Low efficiency of struggle against separate kinds of crimes [411].

Last tendency is especially characteristic for the activity directed on the prevention of crimes against participants of the criminal trial.

Questions of the prevention of the crimes made concerning participants of criminal trial, became the most actual during Post-Soviet time as the wave which has overflowed the country of the organised crime has revealed full unavailability of law enforcement bodies to maintenance of the state protection of participants of the criminal trial [412].

For example, on July, 11th, 1994 nearby to with. Hrjashchevka (30 km from of Tolyatti) have been killed the senior assistant to the public prosecutor of the Samara area — the chief of an investigatory department of Office of Public Prosecutor R.Jagutjan [413].

On August, 30th, 1996 in Moscow in a building of the Ostankinsky interborough court the judge O.Lavrenteva is killed. The criminal — the invalid of II group V.Ivankov — has put O.Lavrentevoj 13 nozhevyh wounds and has been detained by employees of protection.

On March, 5th, 1997 in Dalnerechenske Primorye Territory in own house by unknown criminals have been shot the public prosecutor of a city S.Ko-zhushko and his wife. S.Kozhushko has got heavy wounds in a neck and a shoulder, his wife has deceased.

On March, 31st, 1999 in Makhachkala the assistant to the public prosecutor of Dagestan K.Bulatov is shot from automatic machines.

On November, 11th, 1999 in Essentukah the assistant to the public prosecutor of Pyatigorsk is killed

V.Zhukov. Four unknown persons in masks have rushed into its apartment and have shot in an emphasis [414].

In 1998 the several murders made odintsovskimi by gangsters in closed small town Vlasiha, the senior inspector of 2nd management spetsprokuratury Odintsovsky area JU has become interested. Kerez. It quickly left on a trace of a brigade of Belkin (on a nickname of "Squirrels") and has excited one of the affairs first in Russia under item 210 UK the Russian Federation (the criminal society organisation). One of killers who has started to give evidence has soon been arrested. After that, as field investigators tell, "Fiber" has offered the inspector of 1 million US dollar for business closing and when that has refused, has ordered improvised to kill him. Under the pretext of the vagabond the killer on "Al Capone's" nickname some days were on duty at the house of the inspector and, at last, having caught for J.Kere-coming back from work zja, have killed its four shots in a head [415].

In the autumn of 1998 Suhochev together with Sedenem which in August, 1997 has made murder of inhabitant Nizhnogo Tagila, have developed the plan of elimination of two witnesses of the specified crime. As executors of murder have been involved Troholev and Galitsyn. In October, 1998 Troholev and Galitsyn have taken out victims to wood near with. Korely Nevjansky area where have killed them [416].

Many scientists pay attention to these circumstances. So, according to O.A.Zajtseva, «studying pravoprimenitelnoj experts shows, that last decade illegal influence on judges, the witnesses who have sustained, convicted, lawyers and other participants of process has got character of a scale is social-legal problem [417]. S.A.Yanin specifies, that the quantity of cases of illegal influence increases by the witnesses who have sustained, and also suspected and convicted, promoting the criminal trial» [418].

According to L.V.Brusnitsyna's sights, «threats and violence concerning the persons co-operating with law-enforcement and courts of justice, steels the most widespread means of blasting of system of criminal justice; maintenance of safety of such persons is carried to« global »to problems in crime control sphere» [419].

S.A.Denis believes, that the violence over judges and prokurorskosledstvennymi workers, representatives of other law enforcement bodies up to physical elimination is a direct consequence and the form of display of economic and sociopolitical contradictions. Cases of violence over judges, public prosecutors, inspectors, militiamen and other attendants of "Themis" — not rare and not the casual phenomenon in the Russian validity [420].

From the point of view of V.V. Namnjasevoj, now criminal influence on participants of the criminal trial has got menacing scales both at interstate level, and at level of the world community [421].

So-called Nurkaeva and J.V.Linevich notice, that «developed in 90th years of last century the situation has led to the steady tendency of growth of cases of influence of criminals and the persons connected with them on victims, witnesses and other participants of the criminal trial for the purpose of hindrance to a true establishment on criminal cases» [422].

From the point of view of S.L.Marchenko, process of democratisation of a society is connected with necessity of consolidation of legality. At the decision of this major problem the great value has maintenance of legal security of the citizens who have got to sphere of the criminal trial [423].

The resulted judgements confirm an urgency and necessity of research of problems of the prevention of crimes against participants of the criminal trial.

It would be desirable to underline, that during Soviet time and before the termination of XX century the participants who were directly carrying out justice, that is the persons managing court were more protected. Victims, the witnesses convicted, etc. practically have not been protected from criminal influences or their protection was ineffective. The specified persons got under protection in the event that concerning them crimes as yet there were no acts for protection of participants of the criminal trial from criminal trespasses have already been committed.

Did not solve this problem and the criminal procedure legislation. As truly marks S.A.Yanin, «norms about protection of the persons participating in criminal trial, have been included in the legislation in 90th of XX century when the public life of the country was intensively reformed. Before problems of maintenance of safety of the persons promoting the criminal trial, neither scientists, nor by experts sharply it was not put. Those norms did not exist neither in the Charter of the criminal trial of 1864, nor in ugolovnoprotsessualnyh codes 1922, 1923, 1961» [424]

The Constitution of the Russian Federation accepted on December, 12th, 1993 is the document possessing the higher validity, and has the major value in a question of working out of the measures directed on the prevention of crimes against participants of the criminal trial. UK the Russian Federation has kept the head who protects interests of justice owing to what for criminal trespasses concerning participants of the criminal trial the norms consolidated in gl 1996. 31 UK the Russian Federation "Crime against public justice", is provided the criminal liability. It is remarkable, that foreign scientists have positively apprehended the new Russian criminal legislation. In particular, S. Po - morsky writes about validity of acceptance UK the Russian Federation in 1996 and its coordination with the criminal procedure legislation [425].

Safety issues of participants of the criminal trial are regulated now ch. 3 items 11, ch. 9 items 166, ch. 2 items 186, ch. 8 items 193, item 4 ch. 2 items 241, ch. 5 items 278 UPK the Russian Federation. Besides, it is necessary to allocate a number of the laws specially regulating questions of counteraction to criminal trespasses concerning given persons. It is possible to carry to that, in particular, the Federal act from February, 7th, 2011 № 3-FZ «About police» (in red. From March, 7th, 2018) [426]; the Federal act from August, 12th, 1995 № 144-FZ «About operativnorozysknoj activity» (in red. From July, 6th, 2016) [427]; the Federal act from January, 17th, 1992 № 2202-I «About Office of Public Prosecutor of the Russian Federation» (in red. From December, 31st, 2017) [428]; the Federal act from April, 3rd, 1995 № 40-FZ «About Federal security service» (in red. From March, 7th, 2018) [429]; the Federal act from July, 15th, 1995 « About holding in custody of the suspects convicted of fulfilment of crimes »(in red. From December, 28th, 2016) [430]; the Federal act from April, 20th, 1995 № 45-FZ« About the state protection of judges, officials of law-enforcement and supervising bodies »(in red. From July, 1st, 2017) [431]; the Federal act from August, 20th, 2004 № 119-FZ« About the state protection of victims, witnesses and other participants of the criminal trial »(in red. From February, 7th, 2017) [432], etc. However each of the specified laws solves only separate problems. Unfortunately, in modern Russia complex actions for the prevention of crimes against all participants of the criminal trial are not spent, owing to what it is impossible to recognise such prevention effective.

It is necessary to notice also, that questions of counteraction to crimes against participants of the criminal trial have started to be discussed and developed actively only in the end of XX - the beginning of XXI century by experts in the field of criminal trial, criminalistics and operatively-search activity [433].

In sphere of the prevention of the crimes made concerning participants of the criminal trial, I.A.Bobrakova's research is devoted Kriminologichesky problems, which basic accent does on perfection is criminally-right protection right also legitimate interests of the specified persons from fulfilment concerning them only violent crimes against justice [434]. Within the limits of research of crimes against public justice questions of the prevention of crimes against participants of the criminal trial were developed also K.A.Krasnovoj, G.P.Lozovitskoj, N.A.Tarasovym and some other authors [435]. Measures of the prevention and concerning separate participants of the criminal trial [436] are investigated now.

However complete and kriminologicheski the proved concept of the prevention of crimes against all without an exception of participants of the criminal trial in kriminologicheskoj to the theory and crime control practice, unfortunately, is not available till now.

Results of research of problems of counteraction to crimes against participants of the criminal trial during the Soviet and postreorganization periods have allowed to formulate a number of the basic conclusions which characterise the general tendencies as is criminally-right protection right, freedom and legitimate interests of the persons participating in criminal trial, and the prevention of crimes made concerning them:

1) from first days of formation of the Soviet state and to 60th of XX century responsibility for crimes against participants of the criminal trial has been regulated at first by decrees, decisions and other documents of the Soviet state bodies, and then UK RSFSR 1922 and 1926 Thereby the prevention of the given socially dangerous acts was realised by means of the legal protection which is carried out by norms of the criminal legislation;

2) in UK RSFSR 1960 of crime against public justice have been allocated in the separate chapter. Included in it criminally-rule of law protected the rights, freedom and legitimate interests as the officials who are carrying out justice, and the citizens promoting its departure;

3) after October events of 1917 and to 30th of last century earlier begun researches of problems of the prevention of criminality have proceeded. However in the beginning of 30th kriminologicheskie establishments have been liquidated for ideological reasons, criminality studying appeared unnecessary and harmful. After revival kriminologicheskoj sciences in the late fifties began to develop doctrines about criminality, measures of struggle against it, persons of the criminal, causes of crime and conditions, to it promoting. Nevertheless, in spite of the fact that already during Soviet time separate kinds of criminality began to be studied and to be developed measures of the prevention of the concrete crimes, socially dangerous encroachments were not allocated for participants of the criminal trial as independent object kriminologicheskogo researches;

4) from the beginning of 90th of XX century participants of the criminal trial began to be exposed to unknown earlier mass criminal trespasses. Crimes were made as concerning judges, public prosecutors, inspectors and other officials, and concerning the witnesses who have sustained and other citizens, promoting justice. It is criminally-right protection right, freedom and legitimate interests of the specified persons, the Russian Federation carried out by norms UK 1996, has appeared an insufficient measure of counteraction to the given crimes;

5) about second half 90th the normative acts regulating questions of struggle against crimes against participants of the criminal trial began to be accepted. The norms providing safety of persons, promoting justice, have appeared and in accepted in 2001 UPK the Russian Federation. During this period the measures directed on the prevention of crimes of the considered kind began to be developed actively. However they were reduced basically to acceptance of special laws, perfection of the criminal liability for crimes against participants of the criminal trial or to maintenance of their protection which are based on remedial and other legislation.

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A source: YASHIN Andrey Vladimirovich. CONCEPTUAL BASES of the PREVENTION of CRIMES AGAINST PARTICIPANTS of the CRIMINAL TRIAL. The DISSERTATION on competition of a scientific degree of the doctor of juridical science. Saratov-2018 . 2018

More on topic § 2. Development of measures of the prevention of crimes against participants of the criminal trial during Soviet and Post-Soviet time:

  1. § 3. Questions of perfection of other legal and organizational measures of the prevention of crimes against participants of the criminal trial
  2. § 2. Development of the system of penalties in the Russian criminal law of the Soviet and Post-Soviet periods
  3. Chapter 3. Organization-legal measures of the prevention of crimes against participants of the criminal trial
  4. § 3. The German model of pre-judicial manufacture and criminal trial of the Post-Soviet states
  5. § 1. The prevention of crimes against participants of the criminal trial in dosovetskoj Russia
  6. § 1. Viktimologichesky aspects of the prevention of crimes against participants of the criminal trial
  7. § 1. Concept and the maintenance of the prevention of crimes against participants of the criminal trial
  8. § 2. The prevention of crimes against participants of the criminal trial criminally-legal means
  9. § 3. Problems of the prevention of crimes against participants of the criminal trial and possible ways of their overcoming
  10. § 2. Theoretical model and criteria of an estimation of efficiency of the prevention of crimes against participants of the criminal trial
  11. § 3. Foreign experience of the prevention of crimes against participants of the criminal trial
  12. Chapter 2. A society with limited liability in the Soviet state and Post-Soviet Russia
  13. Chapter 2. The prevention of crimes against participants of the criminal trial as kriminologicheskaja a problem