The concept of criminal proceedings is disclosed in Article 5 of the Code of Criminal Procedure. According to paragraph 56 of this norm, it covers the pre-trial and judicial stages of criminal proceedings. The content of the concept of criminal proceedings consists of the initiation of a case, a preliminary investigation, a court hearing and a substantive resolution. One of the mandatory stages of the process is the qualification of a crime. Let's consider it in more detail.
The concept and stages of qualification of crimes
In the framework of criminal proceedings at the pretrial stage, a legal identity is established between the signs of the deed and the composition of the act enshrined in the Criminal Code. This process is called crime qualification. The stages of this activity are subject to certain laws.
This process takes place over time and is aimed at choosing a specific criminal rule to be applied in relation to a particular subject.
The question of the selection criteria, the number and content of the stages of qualification of crimes in criminal science is solved in different ways. There is currently no single approach to this problem.
Opinion of V. N. Kudryavtsev
The correct qualification of crimes depends on the correct establishment of the factual circumstances of the case , a correct understanding of the essence of the criminal law norm, determination of the legal force of the source, etc. Moreover, these procedures are repeatedly repeated. When establishing the identity of signs there is a constant refinement of certain circumstances.
Meanwhile, as Kudryavtsev believes, these actions alone do not form the content of the stages of qualification of crimes . They form only the prerequisites for them, that is, the conditions that ensure the correct application of the law.
The direct establishment of a specific corpus delicti begins only after the completion of preliminary activities. She acts, according to Kudryavtsev, as a prerequisite for the right qualifications. The author connects the stages of qualification of crimes with the stages of criminal proceedings:
- Case initiation.
- Formulation and indictment.
- Drawing up, approval of the indictment (conclusion).
- The trial in court.
- Review of the case in the appeal, cassation instance.
It seems, however, that all these are not the stages of determining the identity of the signs of an act and the corpus delicti, but only a listing of the stages of the process during which the classification of crimes in criminal law takes place.
Opinion of G. A. Levitsky
Of course, the qualification of crimes as a procedural activity at various stages of the process has certain common features and is subject to specific laws. In this regard, the substitution of the concept of “qualification stage” with the concept of “stage of the criminal process” cannot be considered justified.
According to Levitsky, it is necessary to distinguish 4 stages of qualification of crimes in criminal law :
- Determination of the legal significance of subjective and objective features that characterize the deed and the identity of the citizen involved in it.
- The choice of a specific criminal law norm, fixing the alleged corpus delicti, an understanding of the essence of the signs that form it.
- Establishment of correspondence of the signs of the act and the elements of crime
- Securing the conclusion in the procedural act.
According to some authors, the inclusion of preliminary activities in the process is unjustified. It forms only the prerequisites for the right qualification, however, it is not in itself.
The concept of N. F. Kuznetsova
Kuznetsova also defines 4 stages:
- The establishment of a specific norm that describes the characteristics of the composition of the act.
- Determination of the identity of legally relevant criteria of a socially dangerous act to the characteristics of the composition enshrined in the norm
- The answer to the question of the lack of grounds excluding the prosecution.
- Consolidation of the identity of legally significant criteria of a real socially dangerous action to the signs of the composition defined in the criminal law norm.
It seems, however, that qualification as the choice of the norm to be applied is completed already at stage 1. The above diagram does not reflect the process of this choice.
Features of the qualification of crimes
If the crime is obvious, then the choice of the norm and, accordingly, the qualification of the act can be carried out instantly, and the events are immediately reflected correctly. Moreover, the latter in such cases do not change until the hearing of the appeal.
Instant recognition, which uses the generalized characteristic of a typical object, arises in practice quite often. An experienced lawyer, already in the course of familiarization with the plot of the case, forms an idea of the composition of the act without a detailed comparison of the discovered signs of a crime with the legislative norm.
At the same time, when making disguised, unobvious attacks, the recognition of the norm to be applied can be significantly complicated. It is rather difficult to establish whether a crime was committed, and if so, which one.
Alternative option
A rather interesting concept was proposed by B. A. Kurinov. He identified the following stages of qualification of crimes :
- Determination of the most common signs of a crime to establish the type of criminal relationship.
- Identification of generic traits.
- Definition and comparison of all signs.
Meanwhile, A. I. Rarog points out the inexpediency of determining the type of legal relationship. At this stage, the qualification of a crime is carried out without prior linking (at least preliminary) to a specific norm with the established circumstances. The author substantiates this by the fact that the initiation of proceedings is possible only if there is sufficient data indicating signs of a crime. At the same time, a decision is made in which, in accordance with part 2 of article 146 of the CPC, the official indicates the article, part, paragraph, on the basis of which, in fact, the proceedings are opened.
Practice summary
Analyzing the practical activities of the investigating authorities, one can formulate the most general qualification model, which includes:
- Formulation of the assumption that the event took place. Adequate evidence of the presence of signs should be considered the establishment (at least approximate) of the signs of the object of encroachment and the criteria for harm inflicted on him.
- Nomination of versions (particular hypotheses) in accordance with actual circumstances, that is, the definition of a group of related structures of compounds.
- Differentiation of related compositions, selection of a specific norm, in accordance with which the classification of a crime is carried out.
Controversial issues
In the framework of criminal law science and in the practice of investigations, an opinion was formed that the qualification of acts should be carried out according to the elements of the composition. Moreover, there is no single approach to the question of choosing a specific element.
According to B. A. Kurinov, qualification should begin with the definition of the object of the attack. Other experts believe that the process generally does not obey regulated rules. In practice, in some situations, it is advisable to start the qualification by determining the characteristics of the subject (for example, in the investigation of military, official crimes), in others - with a description of the objective aspect, in the third - the object of the attack (for example, when attempting to attempt the life of an investigator, judge and etc.).
It seems that it is more correct to start qualification by identifying signs of the objective aspect of the act. It is the consequences that are dangerous to society, the tools used by a person, the means or the method of committing an attack that act as the basis for the first stage of qualification - the formulation of versions.
A similar opinion is shared by Kudryavtsev. He points to the insignificant effect of first determining the form of guilt of a person, and then of the characteristics of a specific act that a citizen committed or wanted to commit.
Finally
Differentiation of infringements by subjective criteria should be carried out on the basis of already determined objective signs.
At the next stages of qualification - when formulating versions, choosing a specific norm - the process scheme can be any. Signs that relate to different elements of the composition can be used in very different sequences. This will depend on qualified circumstances.