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Exclusion from definition



In 1996, the lawmaker dropped the responsibility for the so-called simple hooliganism, which was defined only by the above indicators. According to part 1 of Article 213 of the Criminal Code of the Russian Federation, hooliganism was defined as gross violation of public order, expressing clear disrespect towards the society, with violence towards citizens or with threats of such violence, or with destruction or damage of alien property.

 

Most foreign criminal laws which fix responsibility for hooliganism or similar deeds stipulate violence or threat of violence as an indicator of this crime (vide, for example, Z.Apostolova, Comparative analysis of legal regulation of hooliganism in the criminal codes of foreign countries // Justice of Peace. 2008. No 5).

 

But the Federal Law No. 162-FZ “On changing and amending the Criminal Code of the Russian Federation” dated December 8, 2003, radically changed the signs of hooliganism. “Application or threat of application of violence to citizens and destruction or damage to alien property” was excluded from the disposition of part 1 of Article 213 of the CCRF. Hooliganism passed to be criminally punished only when committed with the use of weapons or items used as weapons.

 

A point of view is scientifically proven that the exclusion of the sign of application or threat of application of violence from the corpus delicti of hooliganism is not completely justified, since the very essence of hooliganism implies a measure of violence in the offender’s actions, and hooliganism is traditionally classified as a violent crime. Therefore, “the exclusion by the lawmaker from the definition of such signs of the objective side of the crime, which were earlier present, as application or threat of application of violence and destruction or damage to alien property, does not mean that no attention should be given to such actions. They remain in the lawmaker’s field of view, but (as well as other actions) now characterize the deed which resulted in gross violation of public order” (E. Ovcharenko. Legal assessment of hooliganism // Russian Law Magazine. 2004. No. 3. Page 127).

 

The sign of hooliganism fixed by item “b” of the current edition of part 1 of Article 213 of the Criminal Code of Russia was introduced by the Federal Law No. 211-FZ “On amendments to certain legal acts of the Russian Federation within the framework of improving the governance in the area of combating extremism” dated July 24, 2007. Therefore, the current criminal law sees hooliganism as two qualitatively different crimes, one of which is aggravated by the use of weapons, and the other – by a special motive.

 

This evidences the absence of a single understanding of hooliganism with all signs inherent to this deed. Within the law-application practice, it is precisely this circumstance which leads to the arising of many questions related to the non-existence of clear criteria which define the essence of the violation of public order with clear disrespect towards the society (Z.Apostolova. Discussion aspects of criminal law characteristic of hooliganism as given by the Federal Law No. 211-FZ dated July 24, 2007 // Russian Investigator. 2007. No. 24).

 

The lawmaker establishes, by item “b” of part 1 of Article 213 of the Criminal Code of the Russian Federation, criminal responsibility for hooliganism committed “for the motives of political, ideological, racial, national or religious hatred or enmity or for the motives of hatred or enmity towards a certain social group”, but does not specify which actions make up the corpus delicti of this crime.

 

Evaluation indicators

The disposition includes two evaluation indicators: “gross violation of public order” and “clear disrespect towards the society”, and this endows the law enforcers with the unjustified opportunities to apply Article 213 of the CCRF in a broader, more arbitrary way.

 

These opportunities are somewhat limited, but not eliminated, by the content of item 1 of the Resolution No. 45 by the Board of the Supreme Court of Russia dated November 15, 2007, which explains that “when deciding whether the accused’s actions contained gross violation of public order, expressing clear disrespect towards the society, the courts should take into account the way, the time, the place of the perpetration, as well as their intensity, duration and other circumstances. Such actions may be perpetrated against a certain person as well as against an indefinite number of persons. The person’s clear disrespect towards the society is expressed by deliberate violation of common norms and rules of conduct, dictated by the perpetrator’s desire to oppose him (her) self to the others, to demonstrate scorn towards them”.

 

The terms “gross violation”, “public order”, “gross disrespect towards the society” cannot be clearly defined, which is evidenced by the wordings suggested by scientists, for example:

“public order – respect of the rules of the communal life regulated by legal and moral norms”;

“clear disrespect towards the society is expressed by demonstrative, insolent, disdainful counteraction to the interests of citizens, who may be unacquainted with the offender, generally in public” (Commentary on the Criminal Code of the Russian Federation (article by article) / Responsible editor V.I.Radchenko, scientific editor A.S.Mikhlin, V.A.Kazakova. 2nd edition, revised and expanded. M., 2008);

“gross violation of public order means significance, seriousness of the ofeence, which greatly infringes upon the established order of interpersonal communication in the society” (Commentary on the Criminal Code of the Russian Federation (article by article) / (editor A.I.Chuchaev. 2nd edition, corrected, revised and expanded. M., 2010).

 

Therefore, due to the existence of evaluation indicators, which allow for a very broad construction, actions not having public danger may fall within the scope of item “b” of part 1 of Article 213. In other words, criminal law may be selectively applied to persons who commit actions, which do not infringe upon the legally protected interests. This is exactly the situation when law is tasked with protecting the authorities from the citizens.

 

By the way, Article 213 may be used by the State in this way (due to arbitrary construction) and is thus close to Article 159 of the CCRF “Fraud”. The only difference is that the article on hooliganism is used for “beating” those who are not rich, and the article on fraud is used against the economically active. Both lack clear definitions of the corpus delicti but contain very serious sanctions.

 

 




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