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§2. The Criminally-legal characteristic of a false denunciation

Before to pass to the criminally-legal characteristic of a false denunciation, we will notice, that this encroachment continues to remain socially dangerous throughout the long period of development of a human society.

Does not lose a case in point of the urgency and today.

The high social danger of a false denunciation is defined by the character of act encroaching on normal (lawful) activity on delivering justice, activity of law enforcement bodies, the rights of citizens. The crime considered by us provided by item 306 UK the Russian Federation, initially directs law and order bodies on a false way, distracts great strengths and means, including carrying out of long and expensive expert testimonies in court, on check of the false message on a crime, and subsequently (in case of acceptance of the corresponding remedial decision) - on realisation of preliminary investigation. In some cases it can lead even to condemnation of the innocent person that is the roughest infringement of human rights.

The explanatory dictionary of Russian of S.I.Ozhegova defines a denunciation as «the secret accusatory message to the public agent, the chief about someone's activity, acts» 1.

In an explanatory dictionary of live great Russian language of V.I.Dalja the denunciation is understood «as an argument on whom, not the complaint for itself, and objavlene about any illegal acts of another; izvet» [99 [100]. In turn izvet is «a denunciation, the statement of the foreign person for whose fault, a crime; slander, slander in the form of the complaint or a denunciation» 1.

A.S.Gorelik wrote, that "term" a denunciation »in the broad sense of the word means the message to someone about something. Though from the ethical point of view this term bears in itself a negative charge, however in itself it does not contain anything negative as the message can concern an act, actually someone made, and distribution of such information can be basically socially useful (for example, the message on the preparing crime, promoting its prevention, or about a perfect crime when it has helped to find and expose guilty)» [101 [102].

Let's agree with the resulted opinion as to make a denunciation, that is to inform to data of competent state bodies available data on crimes and other infringements, corresponding to the validity, in our opinion, it is not shameful; on the contrary, it is a duty (let and not established legislatively) each normal person and the citizen. In many respects activity of law enforcement bodies of many developed countries is based on it, after all without the active help of the population really effective crime control is impossible. However, unfortunately, this form of co-operation of citizens with law enforcement bodies fairly discredited itself during the Soviet period. Thereupon it is necessary, that there has passed any time after which expiration the message to the authorities of data on preparing or perfect offences will cease to be perceived in a society negatively.

For explanation of essence of any crime including a false denunciation, paramount value has correct definition of object of an encroachment. In pravoprimenitelnoj it is required to activity, first of all, for correct qualification of actions of the guilty person.

Many scientific - criminalists paid to the designated question the big attention.

So, M.D.Shargorodsky and N.S.Alexey wrote: «the Problem of object of a crime is not less important and philosophically deep problem, than a fault and causing problem» 1. This thought has not lost an urgency and now.

In the special literature there is discrimination to definition of direct object of an analyzed encroachment. So, A.S.Gorelik understood as object «settled by norms of the criminal procedure activity of agencies in charge of preliminary investigation, a consequence, Office of Public Prosecutor and court under the decision of a question on excitation of criminal case (criminal prosecution)» [103 [104]. With A.S.Gorelika's opinion L.V.Lobanova [105] agrees also.

I.V.Dvorjanskov considers as direct object of a false denunciation the public relations providing receipt to tribunals of authentic data on crimes. Thus harm is put to the rights and interests of the person not always in this connection they cannot be considered as additional direct object [106].

Both mentioned approaches are criticised by A.V.Feodor. So, speaking about A.S.Gorelika and L.V.Lobanovoj's position, he approves, that activity of bodies of preliminary investigation and court under the decision of a question on excitation of criminal case (criminal prosecution) «is represented the self-value which is coming under criminally-right protection, in other words, by criminally-legal means activity as that, without its is social-legal appointment with what hardly it is possible to agree» 1 is protected.

A little bit more precisely, in its opinion, defines direct object of a false denunciation of I.V.Dvorjanskov which «starts with necessity criminally-right protection receipt in the order of inquiry, preliminary investigation, Offices of Public Prosecutor and vessels of true data on crimes and the persons who have made them. However in this case it is inexact the crime social danger is reflected. The fact of the untrue report in the specified bodies about ostensibly available crime, how many thereof possibility of excitation of criminal case and criminal prosecution of the innocent person» [107 [108] not so much is dangerous. At this A.V.Feodor sees social appointment criminally - the rule of law provided by item 306 UK the Russian Federation, in elimination of illegal and unreasonable criminal prosecution of the person, restriction of its rights and freedom. Otherwise the specified remedial activity «will admit bolshej social value, than safety of the person illegally involved in sphere of the criminal trial» [109].

Considering the above-stated, A.V.Feodor considers as direct object of a considered crime public relations which provide activity of bodies of preliminary investigation, Offices of Public Prosecutor and vessels on protection of the person against illegal and unreasonable charge, and also condemnation and restriction of its rights and freedom.

In the criminal law doctrine the opinion was for a long time generated, that the false denunciation encroaches on two objects. So, in due time M.H.Habibullin, analyzing direct object of considered act which it has defined as «activity on realisation of problems of justice of that body which functions are broken by fulfilment of a false denunciation (agency in charge of preliminary investigation or preliminary investigation or vessels)» 1, also approved, that «almost each socially dangerous act breaks not one, and a little various under the maintenance of public relations» [110 [111]. Thus it disagreed with the authors believing, that the false denunciation encroaches on two objects.

Among M.H.Habibullin's specified authors mentioned A.A.Piontkovsky who considered, that «a false denunciation to the official, having the right to initiate criminal prosecution, has two direct objects of an encroachment - it encroaches on normal work of the judicial-investigatory device, inducing to begin superficial criminal prosecution against innocent persons, and on interests of the separate person which can suffer if as a result of the false denunciation the person undergoes to criminal prosecution» [112]. The named scientist also criticised A.T.Guzhina, SH.S.Rashkovsky, I.M.black which supported A.A.Piontkovsky's position [113].

It is thought, it is possible to agree with M.H.Habibullina's statement which considered, that «though many crimes simultaneously encroach on various public relations, but not any public relation to which it is damnified thus, admits object of these crimes.... From all set of the public relations broken by a crime to what in case of fulfilment of the given crime the damage always is caused and under all conditions» [114] will be direct object. Otherwise it would be inconvenient to make accountable the person who, for example, has informed false data on event of crime, not specifying on the concrete person.

Considering stated, we believe, that as the basic direct object of a false denunciation the public relations providing normal activity of law enforcement bodies and vessels on delivering justice act. Additional direct object are public relations in sphere of the corresponding rights and interests of the victim from a crime.

Subject of a false denunciation is the information informed by the person on committing a crime, and both prepared, and made or ended. From here follows, that messages on other offences, torts and offences of the criminal liability do not attract.

The informed information, accordingly, should be false, that is entirely or partially to mismatch the validity. The maintenance of such message can be various and concern as event of crime of which actually was not, and other circumstances entering in provided item 73 UPK the Russian Federation the ultimate fact and concerning participation of the concrete person to committing a crime, its motives, character and the size of the caused harm etc.

So, by a sentence of Lublin regional court of of Moscow from 23.06.2011 K it is condemned for fulfilment of the crimes provided ch. 1 items 306, ch. 3 items 30, ch. 4 items 159 UK the Russian Federation. By court it is established, that K, intending to receive insurance indemnity for the car roguish by, has written addressed to the chief of a department of internal affairs the statement for ostensibly perfect crime - theft of its motor vehicle by the unstated person then has transferred to its operative person on duty. Actions K has distracted a department of internal affairs from maintenance of the public safety, the law and order and execution of other functions assigned to it, has infringed upon interests of the state in connection with the material inputs suffered with departure of investigatory-operative group and realisation of check of the mentioned false message about преступлении1.

M.I.Kovalev subdivided denunciations of two kinds: a denunciation about a crime of which actually was not made, without instructions on the certain person; a denunciation with instructions on the concrete person [115 [116]. Hence, the instructions on such person are not sostavoobrazujushchim a sign of a false denunciation, but can be considered at awarding punishment.

The false denunciations which are not containing the concrete facts of committing a crime, for example, that the certain official receives bribes, the corpus delicti do not form and can be considered as display of slander [117]. It is necessary to notice thus, that the incorrect estimation of act testifies to absence of a sign of guilty knowledge of the false denunciation and the corpus delicti.

It was noticed by A.S.Gorelikom, that in case of crime decriminalization comes under decriminalizations and the false denunciation connected with it (that is a denunciation about committing a crime which was subsequently dekriminalizovano). In a substantiation of the position of A.S.Gorelik referred to item 10 UK the Russian Federation [118]. The resulted judgement, in our opinion, is disputable as in case of decriminalization of a crime of action of the person who have made a denunciation connected with this act, do not form the corpus delicti provided by item 306 UK the Russian Federation, that does not testify at all to decriminalization of the last.

The objective party of the analyzed corpus delicti consists in the actions forming a false denunciation in committing a crime. The form of fulfilment of such actions can be different - written and oral, personal and with attraction of other persons, by means of various channels of communications - post, a fax communication, computer or cellular networks, with use of a network "Internet" etc. the Subsequent summer residence of false indications in a substantiation of the false denunciation of independent qualification does not demand, as is its continuation.

As an example we will result a sentence of Simonovsky regional court of of Moscow from 21.10.2014 concerning F, condemned on ch. 4 items 159, ch. 1 items 306 UK the Russian Federation. Last has made a false denunciation orally, having called with the mobile phone in uniform service of rescue "112 1.

One more example is the sentence of Chertanovsky regional court of of Moscow from 17.04.2015 by which A it is recognised by guilty of the committing a crime, provided ch. 1 items 306 UK the Russian Federation. In this case the condemned has informed on the crime invented by it - theft of the car by means of the reference in service «02» GU the Ministry of Internal Affairs of Russia on to Moscow [119 [120].

For scientific discussions the question on anonymous false denunciations is traditional. In particular, there is an opinion that the given corpus delicti covers them [121]. This position is divided by L.V.Lobanova who considers that there was «a practice of reaction to anonymous statements which are accepted, checked, and on them statutory decisions are taken out. As to consider similar practice vicious there are no strong reasons, there are no bases and to refuse a recognition a false denunciation of the false anonymous statement» [122].

V.A.Novikov believes, that the anonymous statement for a crime cannot serve as an occasion to criminal case excitation, referring on item 7 positions ch. 1 items 141 UPK РФ1. The similar argument is resulted by I.V.Dvorjanskov, saying, that the false denunciation «under condition of an establishment of the person of the applicant and the obligatory prevention of responsibility for a false denunciation» [123 [124] is penal.

The mentioned criminal procedure norm does not concretise a kind and the maintenance of the statement for a crime from what it is possible to draw a conclusion that cannot be an occasion to excitation of criminal case not only corresponding to the validity, but also false anonymous statements. In turn, if it is not necessary to speak about possibility of excitation of criminal case under such statement there can not be a speech and about the criminal liability of the person under item 306 UK the Russian Federation. Thus for the sake of justice it is necessary to notice, that anonymous messages and statements

0 crime come under to check, and it frequently demands attraction of great strengths and means. In a case with anonymous false denunciations it does the big harm to interests of justice.

At the same time to draw a categorical conclusion that such denunciation does not form structure of a considered crime, it is impossible. So, for example, SH.S.Rashkovsky marks: «As the prevention of responsibility is not a sign of structure of a false denunciation, bringing to criminal liability of the author of the anonymous letters containing falsehoods about a crime, in case of an establishment of its person operative measures is perfectly in order dosledstvennoj checks is lawful for the false denunciation structure is already executed» [125].

One more problem question is connected with bodies in which the false denunciation should be made. In considered criminally-rule of law corresponding addressees are not specified, as its disposition is idle time (nazyvnoj).

In the special literature for a long time there are two approaches: narrow and broad. Supporters of first (narrow) believe, that the state bodies which are carrying out function of criminal prosecution (bodies of preliminary investigation, Office of Public Prosecutor, court) can be the addressee of a false denunciation only. So, J.M.Kulberg understood as a false denunciation the message on a crime only to judicial-investigatory bodies and other persons, having the right to initiate criminal prosecution. The basis were positions of item 110 UPK RSFSR regulating an order of consideration of messages on a crime and ordering to warn the applicant about responsibility for the considered crime, doing the corresponding entry. It is clear, that such powers allocate only those officials whom is legislatively accorded to spend a right preliminary расследование1. A similar position occupy A.A.Bakradze, S.M.Judushkin, A.B. Sugars, N.A.Noskova, A.D.proshljakov, Z.I. Nikolaev, I.V.Dvorjanskov and other scientists [126 [127].

Other authors, among which I.S.Vlasov, I.M.Tjazhkova, D.O. Khan - Magomedov, M.H.Habibullin, V.A.Novikov, etc., consider, that it is necessary to carry to number of addressees of a false denunciation not only specified above, but also other bodies and the organisations [128]. So, V.A.Novikov believes, that it is possible to carry to number of addressees and other establishments which though do not carry out criminal prosecution, are obliged to transfer messages on prepared or perfect crimes to law enforcement bodies. Examples of such establishments are the ministries, administrations of settlements, bodies of the customs control, tax organs and проч.1.

It is necessary to avoid, however, excessive expansion of a circle of the similar organisations and establishments. So, there will be no structure of a considered crime in actions of the person who have directed a false denunciation in medical, educational and other establishments which activity has no relation to struggle against crimes and other offences [129 [130].

It is represented, that the public authorities allocated with powers on realisation of criminal prosecution concern number of addressees of a false denunciation, first of all: corresponding divisions of system of Investigatory committee of the Russian Federation, FSB of Russia, the Ministry of Internal Affairs of Russia, Office of Public Prosecutor of the Russian Federation (first of all, regarding maintenance

Public prosecution) etc. [131].

As addressees of the named act other enforcement authorities which though do not carry out criminal prosecution, are obliged to transfer messages on prepared or perfect crimes to law enforcement bodies can act also. In particular, such addressees are bodies of the customs control, tax organs, administrations of local governments etc.

From materials of the majority of the criminal cases studied by us follows, that the statements containing false data on committing a crime, mainly go to law-enforcement bodies. This circumstance, in our opinion, is caused by closer (in comparison with other departments) interrelation of the given law enforcement body with the population. Besides, frequently in the opinion of citizens all

Law enforcement bodies associate with police in which it is possible to address on enough wide range of questions in sphere of maintenance of the law and order.

So, despite established item 151 UPK the Russian Federation the competence, E, condemned by a sentence of Reutovsky garrison military court from 19.08.2010 on ch. 2 items 306 UK the Russian Federation, has addressed with a false denunciation about attempt at its rape in the Department of Internal Affairs on of an island Balashikha the Moscow area, instead of in corresponding territorial division of Investigatory committee Russian Федерации1.

Has similarly arrived V, recognised 18.03.2010 Priozersk city court of Leningrad region guilty of the committing a crime, provided ch. 3 items 306 UK the Russian Federation. Condemned has informed on the rape ostensibly made concerning it in part OVD on duty on Priozersk area of Leningrad region by means of phone call [132 [133].

To number of the listed departments the court, which as follows from ch does not belong. 3 items 15 UPK the Russian Federation, are not criminal prosecution body, does not act on the party of charge or the protection party. At the same time on affairs of the request of the aggrieved party which list is fixed in ch. 2 items 20 UPK the Russian Federation (these are affairs about the crimes provided ch. 1 items 115, item 1161 and ch. 1 item 1281 UK the Russian Federation), the decision on criminal case excitation is accepted precisely under the statement of the victim, its legal representative, except for the cases provided ch. 4 items 20 UPK the Russian Federation. It thus agree ch. 1 items 318 UPK the Russian Federation the specified remedial decision is carried to the competence of court which in case of finding of fact of fulfilment of a false denunciation should solve a question on a direction of corresponding materials in body which carries out criminal prosecution.

So, by a sentence of Himkinsky city court of the Moscow area from 01.06.2011 M it is condemned on ch. 1 items 306, ch. 1 items 307 UK the Russian Federation. By court it is established, that last has addressed to the world judge of Himkinsky judicial area of the Moscow area with the false statement

0 excitation of criminal case upon drawing to it of a beating on household soil the flatmate. M as the private prosecutor it was repeatedly warned by court about the criminal liability for a false denunciation and a summer residence of false indications, however continued to support charge, including giving false evidences as the victim. Subsequently the court had been took out the verdict of "not guilty" concerning neigbour M in connection with absence of event of crime, and indications M are recognised by decided and mismatching the validity, directed on court introduction in error. The materials containing data on fulfilment M of a crime, have been directed by court for acceptance of the remedial decision to agency in charge of preliminary investigation [134].

I.V.Dvorjanskov, criticising the second (broad) approach to a circle of addressees of a false denunciation, approves, that specificity of a considered crime consists that the denunciation can be made only to bodies, proxy to make the decision on excitation of criminal case and other remedial decisions provided ch. 1 items 145 UPK the Russian Federation. Thus the statement for a crime should be registered when due hereunder, including putting down of the signature of the applicant, an explanation to it responsibility for a false denunciation etc. then the arrived message on a crime becomes the written evidence. Besides, agreeing with S.M. JUdushkinym, he considers, that the false messages which have arrived by means of post or telecommunication, by publication in the press or anonymously, a false denunciation are not, as they can mismatch criteria of possibility of remedial registration and reflexion in the decision about excitation of criminal case and to demand acknowledgement by different ways.

Of I.V.Dvorjanskov set forth above does a conclusion that a sign of the objective party of a considered encroachment is the direction the guilty person of the message on a crime in body or to the official, proxy to excite criminal case, under condition of an establishment of the person of the applicant and its obligatory prevention of responsibility for a false denunciation. Last circumstance he, after S.M.Judushkinym, recognises not only as carrying out preventive a problem, but also protecting from the criminal liability of persons, «whose reference was defined by the casual moments» 1.

Observance of an appropriate remedial order of reception, consideration and the permission of the message on a crime, out of any doubts, has exclusive importance for the subsequent acceptance of the lawful and proved remedial decisions. At the same time it is represented, that questions of the criminal liability are beyond criminal procedure relations though and it is close with them are connected [135 [136]. So, the person, making a false denunciation, has the purpose (more in detail

0 maintenance of the subjective party criminal case excitation will be told more low), and to it it is not important, how the statement for a crime will get to the competent official.

Thereupon A.S.Gorelik fairly noticed, that it is necessary to take into consideration features of the Russian mentality. It is known, that citizens frequently for whatever reasons do not trust law enforcement bodies and consider, that will achieve desirable result, having sent the statement in the state instances of the federal level which has been not allocated with powers on criminal prosecution (for example, to the President of the Russian Federation, the Government of the Russian Federation, the State Duma of Federal assembly of the Russian Federation etc.). Calculation frequently is under construction that the reference will receive the big publicity and will be put on the control [137].

Thus, we believe, that the social danger of the denunciation directed not directly in body of criminal prosecution, and in establishments which do not carry out criminal prosecution, but are obliged to transfer messages on prepared or perfect crimes to law enforcement bodies, it is identical to the denunciation social danger, directed by the guilty person in body or to the official, proxy to excite criminal case.

The false denunciations made by means of use of telephone, facsimile and other communication, the networks "Internet" extended in mass media, and also anonymous messages on a crime are similarly not less dangerous. As a rule, in such cases applicants either are unknown, or are not warned about the criminal liability under objective causes. The named denunciations can lead to criminal case excitation, including concerning the concrete person, and connected with these negative consequences. Thus according to ch. 2 items 144 UPK the Russian Federation under the message on a crime, extended in mass media, are spent remedial check.

Preventive value of the fact of the prevention of the criminal liability, in our opinion, obviously. However it is not necessary to overestimate it as frequently such measure does not prevent fulfilment of false denunciations.

Causes objections and the written form of the prevention of the applicant mentioned above about the criminal liability as means of a protection from the criminal liability of the persons who have "casually addressed in corresponding bodies with the false statement for a crime. Apparently, there is no difference between the named categories of persons.

On a design of the objective party the false denunciation concerns crimes with formal structure and, according to the majority of the scientists, divided and us, it is considered ended from the moment of receipt of such message in body, proxy to excite criminal case, any by (personally from the applicant, by mail, from other organisations). Acquaintance with the maintenance of a false denunciation, its subsequent check, acceptance of remedial decisions on criminal case excitation, a presentation to the person of charge, etc. are behind frameworks of the corpus delicti and are considered at awarding punishment taking into account the justice caused to interests and the rights of citizens of harm.

As attempt at a false denunciation cases when the corresponding message on a crime for whatever reasons does not get to the addressee are qualified. Preparation for a false denunciation is penal only in case of the mere preparation, provided ch. 3 items 306 UK the Russian Federation (i.e. to grave crime).

Proceeding from a design of the objective party, voluntary refusal of a false denunciation is possible at preparation stages (for example, in case of destruction of the statement for a crime or refusal of a direction of the prepared document to the addressee) and attempts (for example, at the prevention of the addressee of a denunciation about its notorious lozhnosti before reception of the corresponding message on a crime).

In the event that the false denunciation has already arrived to the addressee, but transferred or sent his face has informed on it, it is possible to talk about active repentance. lzhedonoschika it is necessary to consider actions as an appearance with guilty and contribution to crime disclosing that allows to apply positions of item 75 UK the Russian Federation and to release the guilty person from the criminal liability in connection with active repentance, however only in the event that the crime provided ch is committed. 1 or ch. 2 items 306 UK the Russian Federation (that is act of small or average weight). The Committing a crime, provided ch. 3 items 306 UK the Russian Federation and concerning a category heavy, do not allow to apply item 75 UK the Russian Federation.

From the subjective party analyzed act is made with the express intent. The guilty person realises the social danger of the actions, knows about notorious lozhnosti informed data and wishes to make action in the form of a false denunciation. Deliberate character of fault is underlined by a guilty knowledge sign from what follows, that in case of honest mistake concerning reliability of informed data under item 306 UK the Russian Federation does not bear the person of the criminal liability.

Stated it is possible to illustrate with following materials of judiciary practice. By a sentence of Horoshevsky regional court of of Moscow from 01.02.2011 JU it is condemned on ch. 1 items 306, ch. 2 items 306 UK the Russian Federation. By court it is established, that last, being in building OVD on area "SHCHukino" of of Moscow, that is in the state body, having the right to excite criminal case, having the criminal intention directed on fulfilment of a false denunciation about committing a crime, obviously knowing about lozhnosti the message, being warned about the criminal liability for a false denunciation under item 306 UK the Russian Federation, twice - 04.03.2010 and 12.03.2010 has written the statement for the crime made concerning it - the theft provided by the item "in" ch. 2 items 158 UK the Russian Federation, and a robbery provided by the item "g" ch. 2 items 161 UK the Russian Federation, соответственно1.

Recognised 22.09.2010 same court guilty of fulfilment of the crimes provided by the item "in" ch. 2 items 158, ch. 1 items 306 UK the Russian Federation, condemned G, having intention on fulfilment of a false denunciation about fulfilment a crime, on purpose to hide earlier sodejannuju it theft, realising, that the message on a crime induces law and order bodies to carry out its check, and knowing about it lozhnosti, orally, and then and in a written statement has informed operative representative OVD on duty on area "Horoshevo-Mnevniki" of of Moscow

To 0 ostensibly perfect theft of its property while it has been put in pawn G in a pawnshop [138 [139].

The message on mere preparation which fulfilment the person at the moment of denunciation consideration has refused as in this case it is impossible to speak about notorious lozhnosti a denunciation, of course, is not penal in the event that the informer did not know about it and the event did not depend on its will.

The motive and the purpose of a considered encroachment are not specified in a disposition of analyzed norm. At the same time, according to a number of authors [140], the purpose of a false denunciation - to induce bodies of preliminary investigation to make the remedial decision on excitation of criminal case concerning obviously innocent person and to involve it in the criminal liability. About criminal case excitation as the purposes of a false denunciation speaks D.O. The khan-magomedov [141]. Other researchers [142] believe, that the named act not always is connected with the bringing to criminal liability purpose. An example is the crime performance to duck out for sodejannoe (criminal, administrative) to receive insurance indemnity etc. Last arguments are represented by more convincing. Interesting enough the opinion of some scientists that the obligatory purpose of the basic structure of a considered crime consists in deception of the state bodies which are carrying out crime control, about committing a crime which actually not было1 also is.

Studying by the author of materials of criminal cases has shown, that guilty persons aspire to avoid attraction to administrative and the criminal liability more often or to help with it to other persons [143 [144]. Also lzhedonoschiki by such motives, as insult, the revenge, personal aversions, self-interest [145] quite often are guided. Less often at the heart of motivation the aspiration to improve work statistics lays, to institute criminal proceedings innocent persons [146], and at times there are such original motives as concealment of the true fact of absence on the worker месте1, return of the property voluntary transferred on account of maintenance of return it is long [147 [148], fear of negative reaction of close relatives [149], concealment of the fact of dialogue with other person [150].

The perpetrator is the responsible person who has reached of age of 16 years. Thus it is necessary to notice, that certain specificity is inherent in the false denunciation on affairs of private or private-public charge. As according to ch. 2 and 3 items 20 UPK the Russian Federation such criminal cases are initiated precisely under the statement of the victim or its legal representative, the subject of a false denunciation in similar cases will be either the victim, or its legal representative.

The question on responsibility for the self-accusation is important. The given problem - one of the few on whom scientists have come to unanimous opinion that the self-accusation admits a false denunciation. It is necessary to agree with it, as at the self-accusation interests of justice suffer in the same way, as at a false denunciation. It is impossible to forget and that the self-accusation can be means of concealment of another (including, heavier) crimes or it can grow out of wrongful acts of other persons.

At the same time I.V.Dvorjanskovym expresses opinion, that it is possible to recognise the self-accusation as insignificant act, however only in the event that the person false convicts exclusively itself, and in its actions does not contain structure of other преступления1.

Sharp discussions are caused by a question on responsibility for the false denunciation made convicted on criminal case [151 [152]. Dominating in a science and in practice the point of view consists that the criminal liability does not come if the informed false data concern the ultimate fact and are finished to the addressee for the purpose of protection against charge. In other cases attraction convicted to the criminal liability for considered act is carried out in the general order.

The told proves to be true both Soviet, and modern judiciary practice. So, the Presidium of the Supreme Court of the USSR 11.04.1990 has specified on business S, that the convicted bears responsibility in accordance with general practice for a false denunciation about committing a crime by the persons leading investigation on its business. The given judgement at its publication was accompanied by an explanation, that in that case when the convicted gives the false evidences, concerning other persons, declaring, that the crime was made not by it, and specifies in other person as on the criminal or belittles the role in committing a crime at the expense of accomplices, its actions should be considered as an admissible method of protection. If the convicted makes a false denunciation, falling outside the limits a plot of the accusations brought to its as in a case with citizen S, it comes under to the criminal liability under item 180 UK RSFSR, that is for a false denunciation [153].

From item 7 of the Review of judiciary practice of the Supreme Court of the Russian Federation on criminal cases for the second half of the year 1997 follows, that false indications of the suspect about committing a crime by other person do not form a false denunciation, as have been allowed to evade on purpose from the criminal liability and were way of protection against charge. On this basis a sentence on ch. 2 items 306 UK the Russian Federation concerning N it is excellent, business is ceased in the absence of the corpus delicti (definition № 1-D97-16 on business N) 1.

The similar decision is accepted the Full court on criminal cases of the Supreme Court of the Russian Federation on business B, condemned on ch. 2 items 306 UK the Russian Federation. In a substantiation of the position the court has specified, that data on application of unlawful methods of conducting the consequences informed B during interrogation as the suspect and at a summer residence of explanations the worker of Office of Public Prosecutor, act as way of protection against charge and are not a false denunciation in this connection in actions B there is no corpus delicti [154 [155].

At the same time V.A.Blinnikov and V.S.Ustinov believe, that qualification of actions lzhedonoschika under item 306 UK the Russian Federation is possible only when analyzed act is made concerning the innocent person before decision-making on criminal case excitation and after that sodejannoe does not form structure false доноса1. Thereupon A.S.Gorelik correctly notices, that «the resulted criterion cannot be taken as a principle otgranichenija a punishable denunciation from nonpunishable for the problem essence not in the remedial status of the person and the false information form (in the form of the statement or indications), and in, whether concerns this information the ultimate fact, and also whether it has been given for the purpose of self-defence from charge (by charge in the given crime of other person) or with other purpose (for example to discredit a consequence)» [156 [157].

Non-standard enough to a case in point has approached AD Martynenko, having suggested to institute criminal proceedings in a false denunciation suspected and convicted only when the last try to avoid responsibility by means of nonverbal actions, is artificial creating proofs of charge [158]. The given point of view has fairly undergone to criticism S.V.Smolina, expressed opinion, that the position AD Martynenko is not based on the law and not up to the end worked in the theoretical plan owing to that the social danger of the crime provided by item 306 UK the Russian Federation, is obvious and without artificial creation of proofs of charge. The constitutional requirement about the higher value and equal protection of legitimate interests, the rights and freedom of the person and the citizen is besides, broken. Also it is not absolutely clear, what proofs mean: Concerning the concrete innocent person, out of communication with it, the proof of the non-participation in a crime or all named actions [159]. As More correct S.V.Smolin considers A.V.Fedorova and A.V.Shnitenkova's opinion, believing, that borders of legal use of a false denunciation as a way of protection against charge are borders of the rights and freedom of another лица1. Otherwise corresponding actions should attract criminal liability approach. O.J.Baev [160 [161] adheres to the same position.

For anybody not a secret, that convicted frequently at this or that stage of the criminal trial, denying the participation in incriminated acts, or specifies in other, obviously innocent person, or declares wrongful acts of employees of the law enforcement bodies ostensibly applying physical violence, threats etc. As a rule, the official in which manufacture there is a criminal case, estimates arguments such convicted and in most cases the remedial decision on refusal in criminal case excitation makes. All also is limited to it, that it is difficult to recognise correct and sufficient as interests of justice suffer thus at all less.

Thereupon R.Kussmaul who is the representative of the judicial case, notices, that in practice the false statement of the suspect, convicted (defendant) for illegal methods of conducting the consequence, interfaced to promotion of charge to employees of law enforcement bodies about fulfilment of a crime by them, as a rule, is not considered as illegal [162].

Statements about that convicted not always is the subject of a false denunciation, are represented insolvent owing to positions of item 45 of the Constitution of the Russian Federation, not only guaranteeing the state protection of the rights and freedom of the person and the citizen in the Russian Federation, but also establishing, that everyone has the right to protect the rights and freedom in all ways which have been not forbidden by the law. Similar positions contain and in item 47 UPK the Russian Federation. It thus agree ch. 3 items 17 of the Constitution of the Russian Federation realisation of the rights and freedom of the person and the citizen should not break the right and freedom of other persons.

In a considered situation of the requirement of the law just are broken, as the false denunciation is a crime forbidden UK the Russian Federation under the threat of punishment. As a result of fulfilment of this act the rights and freedom of the innocent person is false convicted of committing a crime can be struck, therefore the broad understanding of the right convicted on protection is represented to us incorrect. In the given context it is possible to speak about it in the event that the convicted gives false testimonies about non-participation in incriminated act, not naming concrete obviously innocent persons as committed a crime. Otherwise lzhedonoschik there is in more exclusive position, than a legislative citizen who cannot be protected by similar way. In this connection we will agree with L.V.Lobanovoj's opinion which writes: « Whether those persons whom he has decided to reserve in a crime incriminated to it are defenceless before mis-statements convicted?... Honour and advantage of the citizen should be reliably protected, including from an encroachment of those persons, whose indications cannot be regarded as false witness »[163].

It is interesting, that the similar approach shows in the practice the Constitutional Court of the Russian Federation in Definition from 04.04.2013 № 661 «About refusal in taking cognizance of the complaint of citizen Shagieva Nuryahmata Nuryhanovicha on infringement of its constitutional laws by positions of article 306 of the Criminal code of the Russian Federation». So, the constitutional Court has specified, that in case of a false denunciation

0 committing a crime the guilty encroaches both on interests of justice, and on the personal rights, belittling its advantage. Such actions of the person though and undertaken as the tool of the protection, cannot be considered as admissible and provided UPK the Russian Federation according to which convicted have the right to be protected by all means and the ways which have been not forbidden by the law to object to charge, to give evidence on the charge shown to it or to refuse evidence (points 3 and 21 ch. 4 items 47 UPK the Russian Federation), and also contradict positions ch. 3 items 17 and ch. 2 items 45 of the Constitution of the Russian Federation. Establishing responsibility for a false denunciation, the state executes the constitutional duty to protect advantage of the person, its right and freedom, to provide the rights of victims from a crime and indemnification of the damage caused to it, and also to guarantee an appropriate procedure of justice [164].

Explanations of Plenum of the Supreme Court of the Russian Federation (further - Plenum), given by it in the decision from 30.06.2015 № 29 «About practice of application by vessels of the legislation providing the right of defence in the criminal trial» are remarkable also. Recognizing that the right of defence of everyone who has undergone to criminal prosecution, it admits and guaranteed by the Constitution of the Russian Federation, the conventional principles and norms of international law and international treaties of the Russian Federation as one of fundamental laws of the person and the citizen, and maintenance of the right of defence is a duty of the state and a necessary condition of fair justice, at the same time Plenum in the item 2 mentioned documents has underlined, that the named right includes not only the right to use the help of the defender, but also the right to be protected personally and (or) by means of the legal representative in all ways not forbidden by the law and means including to give explanations and indications concerning suspicion available concerning it or to refuse a summer residence of explanations and indications; to object to charge, to give evidence on the charge shown to it or to refuse evidence.

Besides, according to item 18 of the specified decision of Plenum the court can do not recognise right convicted on protection broken when refusal in satisfaction of the petition or other restriction in realisation of separate competences of convicted or its defender are caused by obviously unfair use of these competences by them to the detriment of interests of other participants of process, as owing to requirements ch. 3 items 17 of the Constitution of the Russian Federation realisation of the rights and freedom of the person should not break the right and freedom of other persons.

The case in point became also a subject of studying of the European court under human rights (further - ESPCH). So, I.V.Smolkova has resulted in article the following fragment of decision ESPCH from 28.08.1991 on business «Brandsteter against Austria»: «Possibility for convicted to undergo subsequently to prosecution for the belief stated by it in the protection, should not be considered as infringement of its rights according to the item 3с item 6 of the European convention on protection of human rights and fundamental freedoms. Would be exaggeration to believe, that an initial parcel of the law of persons, convicted of criminal offence fulfilment, to protect itself, the idea that they should not be exposed to prosecution, when, carrying out this right is, they deliberately cause false suspicions in behaviour coming under to punishment concerning the witness or any other person involved in the criminal trial» [165].

Thereupon A.V.brilliant has come to a substantiated conclusion

0 volume, that «investment of the citizen with the right to represent the proof in the protection against suspicion or charge in committing a crime does not mean possibility of its realisation illegal, including criminal means. Convicted have the right with a view of the protection either to keep silence, or to give evidence so that with evidence not to break the right of other persons, not to resort to the ways of protection forbidden by the law» 1.

It is necessary to notice also, that as in item 306 UK the Russian Federations are not specified the perpetrator, its purposes and motives, it allows to consider the subject of a false denunciation convicted of quality [166 [167]. Besides practically everyone convicted, pursuing the aim to avoid responsibility for sodejannoe, quite realises that in case of fulfilment of considered act concerning obviously innocent person bodies of preliminary investigation can excite criminal case, select a preventive punishment, and then last can be condemned and inflicted to punishment. All it testifies to intention presence on fulfilment of a false denunciation.

Thus, it is necessary to distinguish false indications for which the convicted does not bear the criminal liability, and its indications in which the false denunciation connected with charge of obviously innocent person in committing a crime contains. In the latter case the convicted should bear responsibility in accordance with general practice, that the Russian Federation does not contradict operating edition of item 306 UK and does not restrain its right of defence. On the contrary, it will allow to come to balance of interests convicted and other participants of the criminal trial and will promote more effective realisation of its problems.

The position stated by us is divided interrogated at research carrying out by public prosecutor's workers, 65 % believe, that the convicted should come under to the criminal liability for a summer residence of false indications in which the false denunciation connected with charge of obviously innocent person in committing a crime contains.

The part 2 analyzed articles provides the criminal liability for a false denunciation about the committing a crime, connected to charge of the person in fulfilment heavy or especially grave crime. The raised social danger of such encroachment in the presence of a qualifying sign is caused by that harm in this case is put not only to interests of justice, but also the rights and freedom of the victim from a crime which can be unreasonably involved in the criminal liability, undergo to measures of remedial compulsion etc.

Let's result for presentation the following example from judiciary practice. By Kirishsky city court of Leningrad region 30.06.2011 V it is recognised by guilty of the committing a crime, provided ch. 2 items 306 UK the Russian Federation. By court it is established, that it after independent loss from an apartment window has received heavy physical injuries in this connection subsequently has been taken to hospital. To employees of militia who inspected under the telephone message which has arrived from specified medical institution, V, being warned about the criminal liability under item 306 UK the Russian Federation, deliberately, from personal aversions, has informed false data about ostensibly made E the deliberate actions directed on its murder.

Further the material of check upon causing of physical injuries V in connection with the statement which has arrived from it has been directed under the competence to an investigatory department on Kirishi investigatory management of Investigatory committee at Office of Public Prosecutor of the Russian Federation across Leningrad region. By results of check concerning E criminal case to signs of the crime provided has been initiated

ch. 3 items 30, ch. 1 items 105 UK the Russian Federation. Subsequently criminal prosecution concerning suspect E has been ceased on the basis provided by item 1 ch. 1 items 24 UPK the Russian Federation, that is in the absence of event преступления1.

The part 3 items 306 UK the Russian Federation establishes responsibility for the acts provided ch. 1 or 2 items 306 UK the Russian Federations connected to artificial creation of proofs of charge. As it was spoken earlier, the list of proofs contains in item 74 UPK the Russian Federation (see §1 gl. 1).

So, by a sentence of Krasnoselsky regional court of of St.-Petersburg from 30.03.2011 O it is condemned on ch. 3 items 306 UK the Russian Federation. By court it is established, that last has solved symitirovat fulfilment concerning it crimes for the purpose of reception of a possible delay of payment of a debt of V.Osushchestvljaja conceived, O, being in the street, has scattered on snow the things, has struck to itself blow by a glass bottle to a head, having caused a bruise of soft fabrics of occipital area in the form of a painful swelling then has phoned in militia about an event on it an attack and plunder of money resources, before lost by it at game on slot machines. Subsequently O, being in a place of the residence, being warned about the criminal liability under item 306 UK the Russian Federation, has informed the employee of militia U false data on ostensibly occurred crime provided ch. 3 items 162 UK the Russian Federation. After that the Island Throughout the intention for acknowledgement of a false denunciation has addressed in traumatologic point where has fixed physical injuries [168 [169].

Artificial creation of proofs of charge as especially qualifying sign is understood in the scientific literature differently.

So, M.H.Habibullin extends it to preparation "podstavnyh" witnesses and manufacturing material, and also written доказательств1. I.V.Dvorjanskov agrees with it, believing, that «under artificial creation of proofs... It is necessary to understand and preparation podstavnyh the witnesses which methods can be the most various, including compulsion. The specified sign also covers artificial creation of conditions (place) of committing a crime (for example, instsenirovanie thefts)» [170 [171].

A.V.Feodor does not divide M.H.Habibullina and I.V.Dvorjanskova's resulted opinions, approving, that «the specified circumstance, more likely, testifies to organising activity or instigation to a summer residence of false indications, rather than about the false denunciation connected to artificial creation of proofs of charge» [172].

In our opinion, more correct should recognise M.H.Habibullina and I.V.Dvorjanskova's point of view as preparation of witnesses has not independent value, and it is carried out for a substantiation of a false denunciation, giving to it "objectivity". At the same time in any case it is impossible to recognise as artificial creation of proofs of charge use by the guilty person in the purposes of objectively existing circumstances which can give certain truthfulness to the false denunciation.

Summing up stated, we will dare to make a number of conclusions.

1. The high social danger of a false denunciation is defined by the character of act encroaching on normal (lawful) activity on delivering justice, activity of law enforcement bodies, the rights of citizens. The named crime initially directs law and order bodies on a false way, distracts great strengths and means, including carrying out of long and expensive expert testimonies in court, on check of the false message on a crime, and subsequently (in case of acceptance of the corresponding remedial decision) - on realisation of preliminary investigation. In some cases it can lead even to condemnation of the innocent person that is the roughest infringement of human rights.

2. As the basic direct object of a false denunciation the public relations providing normal activity of law enforcement bodies and vessels on delivering justice act. Additional direct object are public relations in sphere of the corresponding rights and interests of the victim from a crime.

3. A subject of a false denunciation is the information informed by the person on committing a crime, and both prepared, and made or ended. Messages on other offences, torts and offences of the criminal liability do not attract.

4. The objective party of the analyzed corpus delicti consists in the actions forming a false denunciation in committing a crime. The form of fulfilment of such actions can be different - written and oral, personal and with attraction of other persons, by means of various channels of communications - post, a fax communication, computer or cellular networks, with use of a network "Internet" etc. the Subsequent summer residence of false indications in a substantiation of the false denunciation of independent qualification does not demand, as is its continuation.

5. As addressees of a false denunciation the public authorities allocated with powers on realisation of criminal prosecution act, first of all: corresponding divisions of system of Investigatory committee of the Russian Federation, FSB of Russia,

The Ministry of Internal Affairs of Russia, Office of Public Prosecutor of the Russian Federation (first of all, regarding public prosecution maintenance) etc.

To number of the listed departments the court, which as follows from ch does not belong. 3 items 15 UPK the Russian Federation, are not criminal prosecution body, does not act on the party of charge or the protection party. An exception are affairs of the request of the aggrieved party which list is fixed in ch. 2 items 20 UPK the Russian Federation.

Besides, it is possible to carry to addressees of a false denunciation and other establishments which though do not carry out criminal prosecution, are obliged to transfer messages on prepared or perfect crimes to law enforcement bodies. Examples of such establishments are the ministries, administrations of settlements, bodies of the customs control, tax organs and so forth

6. The social danger of the denunciation directed not directly in body of criminal prosecution, and in establishments which do not carry out criminal prosecution, but are obliged to transfer messages on prepared or perfect crimes to law enforcement bodies, it is identical to the denunciation social danger, directed by the guilty person in body or to the official, proxy to excite criminal case.

7. The false denunciations made by means of use of telephone, facsimile and other communication, the networks "Internet" extended in mass media, and also anonymous messages on a crime are similarly not less dangerous. As a rule, in such cases applicants either are unknown, or are not warned about the criminal liability under objective causes. The named denunciations can lead to criminal case excitation, including concerning the concrete person, and connected with these negative consequences.

8. On a design of the objective party the false denunciation concerns crimes with formal structure and it is considered ended from the moment of receipt of such message in body, proxy to excite criminal case, any by (personally from the applicant, by mail, from other organisations). Acquaintance with the maintenance of a false denunciation, its subsequent check, acceptance of remedial decisions on criminal case excitation, a presentation to the person of charge, etc. are behind frameworks of the corpus delicti and are considered at awarding punishment taking into account the justice caused to interests and the rights of citizens of harm.

9. As attempt at a false denunciation cases when the corresponding message on a crime for whatever reasons does not get to the addressee are qualified. Preparation for a false denunciation is penal only in case of the mere preparation, provided ch. 3 items 306 UK the Russian Federation (i.e. to grave crime).

10. From the subjective party analyzed act is made with the express intent. The guilty person realises the social danger of the actions, knows about notorious lozhnosti informed data and wishes to make action in the form of a false denunciation. Deliberate character of fault is underlined by a guilty knowledge sign from what follows, that in case of honest mistake concerning reliability of informed data under item 306 UK the Russian Federation does not bear the person of the criminal liability.

11. Certain specificity is inherent in the false denunciation on affairs of private or private-public charge. As according to ch. 2 and 3 items 20 UPK the Russian Federation such criminal cases are initiated precisely under the statement of the victim or its legal representative, the subject of a false denunciation in similar cases will be either the victim, or its legal representative.

12. Dominating in a science and in practice the point of view of responsibility for the false denunciation made convicted on criminal case consists that the criminal liability does not come if the informed false data concern the ultimate fact and are finished to the addressee for the purpose of protection against charge. In other cases attraction convicted to the criminal liability for considered act is carried out in the general order.

At the same time it is necessary to distinguish false indications for which the convicted does not bear the criminal liability, and its indications in which the false denunciation connected with charge of obviously innocent person in committing a crime contains. In the latter case the convicted should bear responsibility in accordance with general practice, that the Russian Federation does not contradict operating edition of item 306 UK and does not restrain its right of defence. Otherwise lzhedonoschik there is in more exclusive position, than a legislative citizen who cannot be protected by similar way.

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A source: Tsepelev Konstantin Valerevich. FALSE DENUNCIATION And the FALSE INDICATION, the EXPERT'S STATEMENT, the EXPERT OR WRONG TRANSFER: CRIMINALLY - the LEGAL CHARACTERISTIC And QUALIFICATION PROBLEMS. The dissertation on competition of a scientific degree of the master of laws. Moscow - 2018 . 2018

More on topic §2. The Criminally-legal characteristic of a false denunciation:

  1. Chapter 2. The criminally-legal characteristic of a false denunciation and false witness
  2. Tsepelev Konstantin Valerevich. the FALSE DENUNCIATION And the FALSE INDICATION, the EXPERT'S STATEMENT, the EXPERT OR WRONG TRANSFER: CRIMINALLY - the LEGAL CHARACTERISTIC And QUALIFICATION PROBLEMS. The dissertation on competition of a scientific degree of the master of laws. Moscow •,
  3. §1. Social conditionality of an establishment of criminally-legal interdictions for fulfilment of a false denunciation and false witness
  4. §3. Problems of a legislative regulation of the criminal liability for a false denunciation and false witness and ways of their decision
  5. §3. The Criminally-legal characteristic of false witness
  6. Chapter 1. Is social-legal preconditions, historical and foreign experience of an establishment of the criminal liability for a false denunciation and false witness
  7. §3. Foreign experience of a regulation of responsibility for a false denunciation and false witness
  8. §2. History of development of the legislation on the criminal liability for a false denunciation and false witness
  9. § 3.2. Qualifying signs as means of differentiation of the criminal liability for the false denunciation and false witness under the legislation of Russia, the countries of continental Europe, and also the USA
  10. Chapter 3. Problems of qualification and a legislative regulation of a false denunciation and false witness
  11. § 3.1. Designing of sanctions for the basic structures of the false denunciation and false witness under the legislation of Russia, the countries of continental Europe and the USA
  12. §1. The False denunciation and false witness in system of crimes against public justice
  13. 3.1. The False denunciation
  14. §1. Qualification and otgranichenie a false denunciation from adjacent crimes
  15. § 2.1. Fastening of structures of a false denunciation in the legislation of Russia, the countries of continental Europe and the USA
  16. § 2. The characteristic of the elements forming criminally-legal me - hanizm protection of the rights and freedom of the patient