Peculiarities of reception of foreign crime prevention practices in the Russian federation.
TABLE OF CONTENTS I. Introduction. Objective setting II. Functions of criminological comparative legal studies III. Creative punishments as the subject of adopting foreign crime fighting experience IV. Priorities in adopting foreign practices in crime fighting V. Formation of the collective experience resulting from the citizens' enhanced involvement in crime fighting VI. Perspectives Bibliography
I. INTRODUCTION. OBJECTIVE SETTING
Rene David, (1) who was one of the founding fathers of the modern comparative legal studies, often pointed out that the modern world is characterized by interactions between the peoples and solidarity of a mankind. The world has become united. We cannot afford to separate ourselves from the people living in other states or other parts of the globe. The necessity of international interactions requires us to 'open a window' and to take a look at a foreign law. (2) This theoretical position of the classical corporate law scholar is truly based upon the entire history of humankind. It has been known since immemorial times that any significant achievement in any sphere, including the sphere of fighting crime is hardly possible without due support from the past and present achievements of the global civilization. At the same time we often face with our own imperfections, being aware that our ancestors were right, saying that any knowledge is relative and the improvement has no limits. The position of Socrates, the great mentor of Plato, who after having heard much praise for himself, once decided to talk to people on goodness, justice, beauty, friendship, etc. The ideas of the common Hellenes on these matters impressed Socrates with their depth and variety, and he was completely convinced that he was previously right, thinking that unlike many other people he at least knew that knows nothing. (sciomenihilscize). This is what a real wisdom is. And it is no accident that it was later reflected in the Holy Scripture, where Apostle Paul wrote that 'If anyone imagines that he knows something, he does not yet know what he ought to know.' (To Corinthians, 1.8,2). The need for continuity and mutual enrichment of knowledge is a necessary condition for the social development, and it fully applies to law, including crime sociology, as well as to the so-called natural sciences, such as physics, chemistry, mathematics, etc. And it is predictable that the significant positive results in limiting crime were achieved by the states and regions, which have managed to use their past experience with maximum efficiency, as well as to use the positive experience of their nearby and fairway neighborhoods.
II. FUNCTIONS OF CRIMINOLOGICAL COMPARATIVE LEGAL STUDIES
Comparative law studies not only furnish the information about various legal systems, or the laws in question, but also can provide through the process of borrowing--solutions for many problems that can arise or even can help to avoid those problems. (3) Comparative legal studies as a mechanism for the analysis of foreign experience in Russia have many functions. (4) Concerning the issue of using foreign crime fighting experience in Russia, it is viable to outline the following functions: scientific function, educational function, practical function and international unification function. (5) All of those functions contain historical elements. Their studies are necessary in all of their aspects. It does not merely concern the fashion for history and the desire of an author to show off his education. There are more significant reasons for studying history, and a world legal science and practice vividly demonstrates it. One of the most impressive examples may be found in the famous Code of Law of the Great Mongolian State, which became known as the Great Yasa of Genghis-Khan. It was Temujin (the name of Genghis-Khan), who announced at the Great Kurultaj in 1206 the new laws and provisions, which were meant to establish the true statehood in a state, which had previously been ungovernable. He did so for the good of his land, wishing to overcome the opposition of those preferring personal freedom and lack of liability over statehood and order. Analysis of this ageless legal treasure, which had a significant influence on the development of global legal science and practice, (6) from the standpoint of criminological needs of today's Russia it requires to pay attention to the following.
The Great Yasa of Genghis-Khan included descriptions of 36 prohibited acts. Half of those acts were punished with the death penalty. For example, capital punishment was provided even for the greed for food, which seems to be quite an excusable behavior for the modern people. It is unclear for our contemporaries why the punishment for the greed for food was so cruel. What is the practical need to discuss it now in legal and criminological scholarly writings of the XXI century? The answers to these questions can be found in the ageless wisdom of Great Yasa of Genghis-Khan, the ability of its authors to reveal the pressure points in the society, to evaluate them and to take urgent measures in order to neutralize negative manifestations. That is what Genghis-Khan did, (7) since he had understood much earlier than his contemporaries did that in the situation of total poverty and hunger any deviation from non-written standards (customary law) concerning food could be dangerous, so it required immediate reaction of the state in order to avoid riots among poor and starving groups of the society. There are reasons to comprehend this position today when a small group of people, possess the heritage of all nation without any real reason. Should the modern state react to such social injustice severely in a medieval manner? Once again, it is worth thinking about, especially since the causes for the hypertrophied social stratification in the late years involve virtually no legal or economic matters. Rather they are consequences of various fraudulent novelties, and their consequences are so serious that entire states are put at the verge of national catastrophes. It does not suffice to refer to the unfortunate events in the territory of modern Ukraine, where the mass riots of 2013 and later period against intensive spread of the total corruption and the downfall of agriculture, science, culture and education finally led the nation to the civil war. The spread of corruption involving the supreme government bodies has allowed for the rapid formation of the system for the misappropriation of the national heritage, involving nepotism and other legal and economic mechanisms. Questions relating to the situation on how and when ordinary citizens can stand against oppression, injustice, and abuse without resorting to violence challenge all of us to rethink our understanding of international peace and conflicts. (8)
The amounts of these misappropriations are measured by billions US dollars, and they are far beyond the treasuries of the Shahs, Khans, Tsars and Emperors of the past. It should be also mentioned that those treasuries did not belong personally to the rulers. These circumstances should be taken into consideration, when providing theoretical analysis of whether it is possible and viable to have positive perception, rather than blind unmotivated denial of some elements of medieval crime fighting system. While evaluating harsh measures against criminals the one should consider that those measures were not resulted from the voluntarist qualities or "bad temper" of the Great Khan. That document, which had a significant impact on many states including Russia, was not drafted by only Mongolians. The key role belonged to the Chinese scientists. When inviting the Chinese authors, Genghis-Khan realized that the laws and provisions of the Chinese were durable, strict and nuanced. That was how he wanted to see Yasa. And his hopes were truly fulfilled. The main achievement of Yasa fairly recognized by historians, writers and jurists in Europe, Asia and America was that it provided both the clear legal prescriptions for the legal part of life of the Great Empire and it also provided for the clear and detailed system of punishments for those who violated Yasa. For example, it contains a description of nine types of torture. Even reading those descriptions it feels horrified, thereby making people obey the law. Using the modern terminology, these were general measures taken against a crime. According to the position of the Persian scholar Juvayni who lived in the XIII century and studied the Great Yasa of Genghis-Khan, the state almost totally suppressed the greed for riches. If a woman had put a tray of gold upon her head and walked alone with it, she wouldn't have had to be afraid of anything, Juvayni had stated. The prescriptions of Yasa were obligatory for everyone including Genghis-Khan who was an icon of following them. Otherwise, the Mongolians would not have trusted him and probably would not have followed the Yasa.
The laws of the Great Yasa of Genghis-Khan (9) were formulated in such a manner that in spite of all their cruel nature they met the needs of the majority of the population and were accepted by them. The Yasa for the Mongolians was just like what the Quran and the Hadith of the Seal of Prophets were for the Muslims and the Gospels for the Christians. It was not just about the fact that almost any violation of the Yasa was followed by death. The main attraction of the Yasa was in the fairness of its conceptual provisions, making one will to follow it. For example, there were the following provisions, and development of no state could be possible without them. It provided for fame and respect for the pure, blameless, fair, educated and wise people, no matter what their origin was, and for the condemnation of the evil and unfair people. It provided that people should love each other, but they should not commit adultery, they should not steal, perjure, betray. It called for respect for the elderly age and the poorness. It prohibited eating in the presence of others without sharing food with them, or eating more than other people. It required respect for the sages and hermits of any tribe. It required that people should not be aggrandized over other people. Those not wishing to follow those rules found their inevitable deaths very soon.
Within this framework the "savage laws of the Middle Ages" seem to be not so savage and cruel anymore.
For a number of objective and subjective reasons the perception of foreign experience in the sphere of fighting crime by Russia is selective and seemingly accidental.
In order to mitigate these factors, the following should be taken into account. Usually, the most successful measures against various forms of abuse including crimes were developed in complicated political, social and economic situations, at the time of revolutionary changes within a state. Many legal sources of the faraway and near past which already became classical prove that. First of all, they include the Great Yasa of Genghis-Khan, the German Code of Laws of the Emperor of the Holy Roman Empire of the German Nation Charlemagne, which was later named after him, the Russian legal sources (the Dvina Charter of 1398, the Pskovian Charter of 1397, the Novgorod Charter of 1471, the Judicial Charters and Codes of 1497, 1550, etc.). All of those laws included significant "foreign components" and it was due to the high quality and successful practice of application of foreign laws, as well as particularities of the individuals who decided to take that foreign experience. For example, the phenomenal multi-faceted abilities of the first Russian Emperor Peter the Great (Petr Aleksandrovich Romanov) allowed him to use a wide range of foreign laws in order to introduce anti-crime measures, which could be deemed efficient according both to the modern standards and to the standards of his time. It is worth mentioning that for the first time in the Russian history Tsar Peter the Great established the same severe punishment for taking and giving bribes with his Decree of August 23, 1713. It is also notable (as far as fighting white-collar crime is concerned) that with his Decree of March 17, 1714 Tsar Peter the Great established the responsibility for officials, bringing a harm and financial damage to the state. What's more, since he could not rely upon the will of officials to work honestly, Tsar Peter the Great did not allow them to remain in the same position for a long time. He used what now would be called vertical and horizontal rotation, and so it was a legislative provision, which was successfully implemented 300 years ago in the state government apparatus of the Russian Empire. Difficult political, social and economic situation within the state stimulates the development of highly efficient anti-crime measures, which are quite worthy of reception by other states. This is a sustainable category, which is typical for more than just the distant past. For example, the legislation of the USA, which was developed within the framework of emergency measures to get the state out of the Great Depression of 1930-1940s, couod be regarded as a classic crime prevention scheme.
At the pre-crisis time the legal protection of economic activities in the USA was underdeveloped and it was hardly attractive for other states. However, after the resonating investigations of the Senate Commission of the US Congress concerning the financial catastrophe of 1929, a number of Federal Laws were adopted, and their international value could hardly be overestimated. Those laws include the US Securities Act of 1933, the US Banking Act of 1933 and the US Securities Exchange Act. Analyzing those laws from the standpoint of the possible receptions of their mechanisms for protecting economy from criminal encroachments, it should be noted that the US Securities Act of 1933 introduced the system of legal regulation of the relations at the stages of emission, placement and sale of securities for the first time in the world's practice. It is of no less importance that the activities of the issuer became transparent both for the state and for the people. The issuer was allowed to sell securities only after his declaration of intent was registered by the Securities and Exchange Commission. The registration procedure for the declaration of intent to sell securities presupposes thorough examination of seller's credit history. What's more, the US Securities Act of 1933 provided for criminal liability for any attempt of the issuer to fraud or mislead the Federal Securities and Exchange Commission. It is important to note that the American tradition provides for establishment of criminal liability for "branch" abuse in special laws, rather than in the Criminal Code. And that tradition has spread among many states in the global community. For example, the number of the convicts according to special laws in Japan is much higher than the number of those convicted according to the Criminal Code. There are certain grounds for this practice to be adopted in Russia as well. In any case, this issue is being actively discussed among the expert groups in the Russian Federation. For example in the VI meeting of the Russian-German Roundtable devoted to the issues of fighting crimes in Russian and European Economics, which was held at the Kutafin Moscow State Law University in November of 2014, the Russian legal scholars addressed to their German colleagues mostly with the questions on the legal practice of application of specialized laws on criminal responsibility for economic crimes.
From the standpoint of criminological practice the most attractive is containing in the above-mentioned US Banking Act of 1933prohibition for the private banks to combine commercial and investment functions. The law prohibited the banks to act as brokers (dealers) or otherwise in the stock market. The enforcement of anti-crisis laws in the USA was mostly guaranteed by the provision of various types of punishments for both individuals and legal entities. Among them there are public reprimand, fine, expulsion from the range of professional market participants, and long term imprisonment. For example, use of telecommunication or mail for spreading fraudulent information in the stock market is an aggravating circumstance, and it is punished with the prison term up to 5 years. If the fraud is directed against a financial institution, the guilty party is a subject to pay a fine up to 1 000 000 USD or to imprisonment up to 30 years, or even both of them. From that time till now American legislation was developing mostly to include more severe sanctions for the abuses in the sphere of business and finances. For example, the Foreign Corrupt Practices Act of 1977 provides that the persons guilty of such acts are punished with fines up to 2 000 000 USD. In addition, the generally broad discretion competence of the US judges tends to become even broader.
III. CREATIVE PUNISHMENTS AS THE SUBJECT OF ADOPTING FOREIGN CRIME FIGHTING EXPERIENCE
There is a gap in criminological and criminal science in this respect, and filling this gap would facilitate correction of many shortcomings of the penal system.
What is the nature of this problem? The issues of definition, goals and types of punishments are quite sufficiently studied. There are intensives positive changes in this sphere, facilitating the practical implementation of the general principles of the modern criminal law (lawfulness, justice, humanity, differentiation of responsibility, individualized punishment). For example, the system of criminal punishments in the Russian Federation contains a limited list of punishments, which is obligatory for the court. These punishments include fine, the loss of right to hold certain official positions or to be involved in certain activities; loss of specialized right, military or honorary position, class rank or state awards, limitations in military service, limitation of freedom, obligatory works, arrest, service in a disciplinary military unit, deprivation of freedom for a certain period of time, life sentence in prison and capital punishment. (10) It is easy to see that there is a broad range of punishments, however, at time they are not sufficient to restore the social justice, to achieve an improvement of a convicted person, to prevent new crimes committed by this or other persons. What should one do in such a situation? Some authors suppose that all the generally recognized goals of the criminal punishments can only be achieved in a manner of medieval times, when the capital punishment was the dominating type of punishment. Other authors consider that there is a need for more dynamic development of types of punishments. The third viewpoint is that there is a need to widen the scope of discretion of the law enforcement officials, allowing them to use currently existing punishments or to create new types of criminal punishment. This is not an easy question. It becomes more or less from time to time both in theory (11) and in practice. For example, on December 4, 2014 the group of terrorists entered the city of Grozny, and captured the News Center and a school. They killed 14 policemen and wounded 30 people. The terrorists were killed. However, this measure does not guarantee 100% preventive effect, as the the experience shows. That is why the Head of the Chechen Republic Ramzan Kadyrov proposed that the homes of terrorists should be burned down and their families should be deported. He also proposed to dismiss the heads of regions, where the facts of unlawful use of weapons by their residents took place. These are creative means of reaction to terrorism-related facts. However, there are no exceptionally cruel and socially unacceptable elements in them. There was an analogous practice at the time of the Caucasus war (1817-1864), and there is a similar modern model of fighting terrorism in Israel, which is not condemned by anyone. It is no accident, that 75% of people who were taking part in the radio poll approved the creative position of R. Kadyrov, while only 24% were against it. The neutral position on this issue was adopted by 1% of persons polled. Nevertheless there are a lot of questions arising. It is necessary to look for the creative and untypical punishments. First of all, there is a need for the definition of creative punishment, which may be based upon the foreign experience. As a starting point, it is offered to regard creative punishments as punishments characterized by creativity and different from a common idea on its essence, at the same time being efficient means for achievement of purposes of criminal punishment defined by law.
When resolving legal, moral, ethical, organizational and economic problems, concerning application of creative punishments, the existing positive and negative experience in this sphere should be taken into consideration. For example, since the USA has rich legal traditions, some of its states apply creative punishments for crimes of insignificant and medium gravity. For example, a 22-year old Atlanta resident Brendon Huff was brought to criminal responsibility for "forgetting" to pay for the gasoline, when refueling his car. The judge decided that considering personal qualities of the offender and type of his crime, the best punishment would be creative rather than "classic". The creativity was expressed by obliging the offender to walk regularly along the road near the gas station wearing the poster "I stole gasoline, and this is my punishment". In the opinion of most American citizens of various incomes and social origins creative punishments such as this one are more effective than fines for the persons who have committed de minimis crimes.
There is a relatively wide range of offences to which creative punishments are applied by the judiciary, and they are supported by the public. To provide a general idea regarding this matter, there are some examples of the US judicial practice on creative punishment in the mass media:
--Housewife Michelle Murray was obliged to spend a winter night in the forest for leaving 35 kittens there before;
--The offender, who broke into a house and defecated on the floor, was sentenced to cleaning 100 prison toilets;
--Juvenile drug addict was sentenced to 40 hours of working at the drug rehabilitation clinic. The things she has seen there made her lose any interest to narcotic drugs;
--Juvenile offenders who punctured the tires of the school bus had to organize a picnic for the elementary school students.
Specific contents of creative punishments depend much on the state, specific region, national specificities of the population and some other factors. The most authoritative and circulating Russian newspaper "Komsomolskaya Pravda" having made a public survey, established that when it comes to the criminal punishments, Russians do not sure the same opinion with Americans. For example, when asked how to deal with stealing, 35% of the interviewed said that the thieves should be imprisoned; 27% of persons said that the names and photographs of the thieves should be put on TV and in the newspapers for all to see; 26% of the interviewed want to cut hands off for thieving; 12% of the them consider that nothing should be done, since everyone steals here.
As for the above-mentioned case with a gasoline thief in Atlanta, Russian newspaper 'Komsomolskaya Pravda' asked Russian citizens what kind of posters should be placed on offenders in Russia. Here are some of those answers:
Yulia Latynina (journalist and writer): 'Most drivers would have "I bribed the road police" posters. Most pedestrians would have "I crossed the road, where it was prohibited". The public officials would have "I misappropriated ... millions" posters.'
Mihail Barschevskiy (advocate): 'I was punished for petty theft.'
Oleg Mitvol (public activist): 'He pollutes environment.'
Boris Nemtsov (politician): 'Everyone steals and I do.'
Grigory Antipenko (actor): 'Beware, you see a.'
Dmitriy Puchkov (interpreter): 'I sell drugs', 'I am a prostitute', 'I use prostitutes services'.
IV. PRIORITIES IN ADOPTING FOREIGN PRACTICES IN CRIME FIGHTING
Taking into account the situation, structure and dynamics of crime in the modern world, Russia has great opportunities, when it comes to choice of subjects for adopting foreign crime fighting experience. There is no need to take everything at the same time, and it is technically impossible. The problem of collective experience in the sphere of fighting drug business and related matters seems to be among such priorities. In this respect there is no need to start anew with every relevant issue. There is a huge experience of foreign states, and it is worth to reveal and study it, then to develop methodology and directions for other states and regions. It is quite indicative that the unique experience of fighting drug addiction is not limited to superpower states with highly developed medicine, law, and information capabilities for transition of the experience to the interested states and international organizations. There is much use for fighting drug crime in the other sources, even if they are difficult to access for internal or external reasons. To support this position, one may refer to the experience of the Socialist Republic of Vietnam. Acting in a difficult postwar period Vietnam government managed to make this problem much less pressing. Its criminological nature is as follows. For a number of political and economic reasons by the early 1970s Vietnam (and especially southern Vietnam) became an important link within the system of states within the so-called "Golden Triangle" (Thailand, Laos, Philippines and some other Southeast Asian states). The sea port of Saigon became an important trans-shipment point for narcotic drugs in that region. It is natural that most of the drugs became accessible both for the rich American army, having its quarters in the Southern Vietnam, and for the poor native population. The scale of drug addiction among the population was exceptionally high compared to the global rates. However, just in six months after Northern and Southern Vietnam were united the situation suddenly changed for the better. The new government offered all persons suffering from drug addictions to undergo a voluntary medical treatment in the special centre of social and medical rehabilitation. Its efficiency was highly beyond any expectations. Only 15% of drug addicts returned to using drugs after the treatment. Such results had never been achieved before. The school annually hosted up to 700 delegations from the USA, the Great Britain, France and other highly developed foreign states. Having been the advisor to the Supreme People's Prosecution of Vietnam, the author had an opportunity to see the work of that centre and evaluate it from the criminological standpoint. In brief, the results are as follows. The staff included 1 doctor and several supporting staff workers, including administration. Treatment for 1 000 drug addicts included several stages. First stage was a medical one. The drug addicts followed the prescriptions of the doctor, helped each other with physiotherapeutic procedures (medication shots, medications). The second stage was educational. The patients were told that the new government needed healthy citizens who could bring a maximum use to the society, their families and themselves. And they could become those citizens, only if they truly wanted it. The third stage involved restoring the willpower, which was previously lost at the time of drug addiction. It was achieved by daily exercises in the open area in the 40 C heat, martial arts training in order to restore spiritual and physical balance of the patients. The fourth stage was a labor therapy. The drug addicts worked, and their work was not limited just to socially useful jobs, such as watering the rice fields. Their work was economically profitable for them as well. For example, they made popular seafood delicacies, such as shrimp patties for a foreign market. It allowed them to earn several times more than other Vietnamese citizens. The drug addicts could send the money that they earned to their families, who had not even dreamed of such incomes before. There was created an atmosphere of importance of their work. Naturally, there were developed and supported feelings of their value and respect for their work. When they got free from drug addictions, the former addicts could leave the centre and return home. There were no administrative or other obstacles for them to do so. Several years later, while holding the same position, the author managed to visit the school of social and medical rehabilitation for the drug addicts near Saigon (currently Ho Chi Minh City). The situation became worse, especially from the standpoint of criminological markers. First of all, a school became a closed and a strictly guarded institution; the term of stay there became fixed. The process of treatment was seemingly the same. The same medical measures, the same labor therapy, the same support for the physical health. However, the ideological and psychological means of influence upon the drug addicts, which provided that they were capable of becoming worthy members of society and getting good jobs, were removed. In this respect the government was not able to fulfill its obligations to the patients, who were healed of drug addiction. Thus, the entire system of treatment, reeducation and correction of drug addicts was undermined.
The above-described experience of overcoming drug addiction in Vietnam with its positive and negative features withstood the test of time, and, quite naturally, it was adopted by many states, including the Russian Federation. On November 20, 2014, the Federal Drug Control Service (FDCS) introduced for the Government of the Russian Federation the Program for Rehabilitation of Drug Addicts and Consumers of Drug-Containing Substances. This Program involves the use of foreign experience, including the experience of the Socialist Republic of Vietnam, and it introduces a number of measures meant to limit the punitive element within the system of working with drug addicts to its minimum. It is very important, since over 200 000 drug addicts are annually brought to administrative and criminal liability in Russia. As the Head of the FDCS Viktor Ivanov stated, the drug addicts should be sent for rehabilitation, and not to prisons. However, it requires significant improvements in quality and quantity of material and technical guarantees of the activities of the relevant Ministries and Departments. It is planned to spend about 180 billiard rubles for this purpose in the period till the year of 2020. Additionally, there will be private drug rehabilitation centers, working along with the state centers according to the unified standards for assisting drug addicts. Those standards will be worked out soon in accordance with the assignment of the Government of the Russian Federation. (12)
The traditionally topical direction of adopting the foreign crime fighting experience by Russia is corruption. This is not a new problem for Russia, and many useful measures were already taken. (13) In any case, a rather balanced system of revealing, investigation and prevention of embezzlement of state property, bribery and other similar state service-related crimes had been formed in Russia long before Christopher Columbus discovered America. However, this problem does not seem to become less acute, and it gains more and more international damage potential. That is why, the UN and other international organizations take more and more intensive efforts to curb the white-collar crime, such as corruption. The international community adopted a number of acts against it, such as the Criminal Law Convention on Corruption (ETS N 173) (Strasbourg, January 27, 1999); the UN Corruption Convention (adopted by the General Assembly of the UN on October 31, 2003). These acts relieved the tension in the sphere of fighting corruption in the world to a great extent. And these Conventions are implemented into the Russian legislation. However, the practical experience shows that these measures are not sufficient for the positive results at the level, which was achieved by most states in the global community. In any case, the problems for Russia are obvious, and they do require additional measures in order to improve the efficiency of reception of the experience and socially valuable achievements of foreign states in the sphere of fighting corruption. It is hardly possible to make a list of such states, and it is probably not viable. However, based upon the general principles of comparative legal studies, it seems reasonable to give priorities in the sphere of foreign experience in fighting corruption to the USA and China. Within a short span of time, while using different means and methods these states managed to achieve similar positive results in overcoming corruption manifestations in various spheres of economic and administrative activities, including legal sphere. The latter deserves special attention. In the high days of mafia at the time of the Great Depression in the USA the scale of corruption in the police was higher than anywhere else in the world. The famous Chicago gangster Alfredo Capone publicly stated that he had bought a police, and was not afraid of punishment. In any case, it took a lot of efforts to take the N.1 Gangster to the prison in the USA, and he was taken not for the hundreds of murders and other grave crimes that he had committed, but for the tax evasion in his legal business of small-scale furniture retail.
Historically speaking, quite little time has passed since then. Once we turn to the criminological analysis of the persons guilty of corruption crimes in the USA, there are almost no judges, policemen, attorneys, or law-enforcement officers among them. How was it achieved? Scientifically substantiated information on these matters is quite of interest for Russia, where the law-enforcement system is not at the bottom of the list, when it concerns the corruption offences.
V. FORMATION OF THE COLLECTIVE EXPERIENCE RESULTING FROM THE CITIZENS' ENHANCED INVOLVEMENT IN CRIME FIGHTING
The issues of raising the level of social activities of the people in the foreign states (social capital) are quite topical for the Russian criminology today. It is still so, while Russia does have significant and long-standing experience of participation of people and nongovernmental organization in social matters. In any case, in Russia in 1881 after the murder of the Emperor Alexander the II by the member of the 'Will of the People' group (narodovoltsy), there was formed a closed non-governmental union 'Holy People's Guard'. It was meant to act against terrorism, to reveal Russian revolutionaries in Russia and abroad, to physically protect the Tsar during the mass events and tours, fighting rebellion and nihilism.
The Holy People's Guard as a NGO acted in close cooperation (without hierarchy) with the police and other law-enforcement bodies of the Russian Empire. The Guard was financed rather generously by the Emperor Alexander the III. The members of the Holy People's Guard had no salary or other benefit. The only stimulus for their work was to protect the Tsar and the Motherland. The Holy People's Guard worked rather efficiently and operatively. Just after one year it was formed it reached its main purpose. Later its functions on support of legal order were transferred to the new public organization--the Voluntary Guards. It was more democratic and mass (compared with the Holy People's Guard) organization for participation of citizens in fighting crime. The Voluntary Guards involved representatives of all classes of Russia, and the procedure for joining the Voluntary Guards was much simpler, than that of the Holy People's Guard. There was only a need for recommendations from two acting members of the Voluntary Guards.
The administration of the Voluntary Guards was carried out by the Minister of the Interior of Russia and the Governors. The main goals of the Voluntary Guards involved the following: prevention of attacks upon the Tsar and the royal family, prevention of mass riots. The Voluntary Guard as a form of participation of citizens in fighting crime withstood the test of time and by the start of the 1st World War (in more than 30 years after it was formed) there were over 40 000 members in it. It ceased to exist after the February revolution of 1917, and so did other public order protection bodies.
In the Soviet period the role of non-governmental organizations within the structure of state and non-governmental bodies fighting crime was changed dramatically, and it gained much greater scale compared to the pre-Revolution period. The purpose of most Soviet government and administration bodies was to guarantee the social activities of the population at the maximum level.
Thousands of various non-governmental organizations, commissions and committees for assisting the government in fighting crime were formed among the workers, peasants and Soviet intelligentsia. For example criminal judicial proceedings obligatorily involved public defenders and public accusers. Many judicial hearings were held in the organizations or at the factories. There were institutions of public assistants for investigators and prosecutors, bailiffs, etc. The voluntary communities (brigades) for assistance to the militia and criminal investigation were very efficient. So were the non-payroll militia officers, Komsomol brigades, public auditors, controllers, inspectors, etc.
In the Soviet period the most mass forms of participation of people in preservation of the public order were the voluntary people's guards, involving over 10 000 000 people. While there were obvious abuses, elements of formalism and showing off in the activities of nongovernmental organizations in the Soviet period, there were positive elements, preventing crime and other types of unlawful behavior.
At the same time, in the opinion of the author the scale of participation of citizens in fighting crime was overgrown in the Soviet period, and it was not efficient. Overall, the super-scale of participation of citizens in fighting crime contradicted the very nature of the society. For example, it is a well-known fact that the number of socially passive citizens (especially, when it comes to the specific spheres of social activities, such as revealing and prevention of crimes) is 15-20 times higher than the number of socially active citizens. This is a sustainable ratio and it does not tend to change dramatically. For example, in the middle of XIX century the famous Russian writer N.G. Chernyshevskiy, the author of the famous novel 'What Is To Be Done?' noted that the nation had about 10% of active and talented people. They are ready to search, to risk and to achieve success in the name of the people. The rest of the people are socially passive and their initiatives are limited solely to their personal interests. One can hardly count upon the success of mass involvement of citizens in fighting crime in such conditions. It is an impossible task. However, it is possible to improve the ratio between the socially active and passive groups of citizens for the better of the community.
There is a certain positive experience of this kind in Russia, in the EU states, in the USA and China, in Japan and some other states in the global community. And it becomes accessible for other states thanks to the efforts of the UN, other regional and national structures. However, that is not sufficient for achieving a progress, especially since it concerns the documents themselves, rather than generalization of the practical experience.
At the initial stage of formation of the market relations in Russia in 1990s, when some things were not done at the right time, the institution of the participation of citizens in fighting crimes almost ceased to exist. However, it soon became obvious that such a voluntarist method of limiting the number of subjects fighting crime in the Russian Federation was altogether unproductive. Legal and organizational reform of the activities of the citizens and public organizations in the sphere of resolving the problems of fighting crime was to a great extent based upon the positive national traditions. Nevertheless, such an approach does not always give satisfactory results, and it has no theoretical guarantees. For example, in spite of the new foundations for the formation and functioning of the civil society institutions, the theoretical and practical issues of their interaction with the state government and administration bodies are being resolved in accordance with the old standards, when the non-governmental organizations were regarded as some appendix to the state bodies, and the state bodies had total control over the non-governmental organizations.
It is currently impossible to agree with such position, especially since a complex theory of combination of social and state control is absent in Russia. For example, there are no scientifically substantiated principles of the implementation of the state control for state-governmental organizations activity. There is only a will to control them. As a result, the party acting as a non-governmental organization, often falls outside the scope of legal influence upon the offenders wishing to achieve public order by any means. The other party (state government and administration bodies) attempts to direct the public initiatives in a right way.
For a number of reasons of political, economic, administrative and legal nature it is currently impossible to establish a mathematical formula for calculation of the acceptable level of state bodies influence on non-governmental organizations activity. Perhaps, there is no need for it in a developing democratic state. In order not to risk making serious mistakes, it is sufficient to use constitutional provisions establishing that 'the creation and activities of public associations whose aims and actions are aimed at a forced change of the fundamental principles of the constitutional system and at violating the integrity of the Russian Federation, at undermining its security, at setting up armed units, and at instigating social, racial, national and religious strife shall be prohibited' (para 5 of Art 13 of the Constitution of the Russian Federation).
As for the rest, the degree of influence of state government and administration bodies upon the activities of non-governmental organizations and citizens should be minimal, and at best it should be zero. Within such a model of interaction between the government bodies and public many of the limiting factors for the social activities of the people should be removed. However, it does not seem viable to achieve the desired result simply by the refusal of the state to control the activities of non-governmental organizations and associations. The practice shows that uncalculated steps in this direction lead to grave violations of basic rights and freedoms. Russia is not the only state facing problems of that kind. It is natural, that there is also positive experience in resolving those problems. Nevertheless, the reception of the foreign experience is occasional and isolated. The activities in the sphere of development of international crime fighting programs also became less pronounced. Most of them have long history, and the 'model range' is not renewed with due intensity, while there is great need for such renewal.
The issues discussed in this article do not cover all of the aspects of the relevant problem. They more reflect subjective priorities of the author. It seems necessary to turn to other aspects of this problem later on, since it was not sufficiently studied. One of such aspects concerns various subjects of adopting the foreign crime fighting experience. So, the famous Russian proverb saying: 'the deeper in the wood you go, the more timber seems to grow' is quite applicable to the problem in question.
Al-Aqaileh ZM, 'Legal Cultures Dialogue: Benefits and Obstacles of Comparative Law Studies' (2013) 54 Journal of Sharia & Law
Dashkov G.V. Kreativniye vidy nakazaniya kak ugolovno-pravovaiya i kriminologicheskaiya kategoriya/Sbornik nauchnykh statey 'Nauka ugolovnogo prava i sovershenstvovanie ugolovnogo zakonodatel'stva, Moskovskiy universitet MVD Rossiyi. 2007. S. 18-21. (GV Dashkov, 'Creative Punishments as a Category of Criminal Law and Criminology' (2007) Collected Articles. Science of Criminal Law and Improvement of Criminal Legislation. Moscow University of the Ministry of Interior of Russia)
Dashkov G.V. Kriminologicheskaiya sushchnost' korruptsiyi i korruptsionnoy prestupnosti/Sovremenniye problemy ugolovnoy politiki. Materialy V Mezhdunarodnoy nauchno-prakticheskoy konferentsiyi. Krasnodarskiy universitet MVD Rossii. 2014. T 1. S.103-110. (GV Dashkov, 'Criminological Nature of Corruption and Corruption Crime' (2014) 1 Modern Problems of Criminal Policy. Materials of the V International Scientific and Practical Conference. Moscow University of the Ministry of Interior of Russia)
David R, Les grands systemes de droit contemporains (Dalloz, Paris, 1964)
David R, Jioffre-Spinosi C, Osnovnye pravoviye sistemy sovremennosti /M.: 1996 (R David, C Jioffre-Spinosi, Major Legal Systems in the World Today (1996))
Egorova E. Pravitel'stvo vzyalos' za narkomanov/Moskovskiy komsomolets. 2014. S.2. (E Egorova, Government Takes Care of Drug Addicts (2014))
Governance, Corruption, and Conflict (United States Institute of Peace, 2010)
Gumilev L.N., Drevnyaiya Rus' i velikaiya step'/M.: 1992 (LN Gumilev, Ancient Russia and the Great Steppe (1992))
Juvayni Ala Ad Din Ata-Malik, Istoriya pokoritelya Vselennoy/ Rodina. 1997. No. 3-4. (Ala Ad Din Ata-MalikJuvayni, 'History of the World Conqueror' (1997) 3-4 Rodina)
Khoara-Davan E. Chingiskhan kak polkovodets i ego naslediye/ Arabeski istoriyi. Pustynya Tartari. 1995. No. 2. S. 89-90. (E KhoaraDavan, 'Genghis-Khan as a Chieftain and His Heritage' (1995) 2 Historical Arabesques.Tartary Desert)
Oksamytnyi V.V., Vozniknoveniye i evolutsiya sravnitel'nogo pravovedeniya. Rossiya: na puti globalizatsiyi i integratsiyi/Institut mezhdunarodnogo prava i ekonimiki imeni A.S. Griboedova. 2012. S. 44-47. (VV Oksamytnyi, 'Appearance and Evolution of Comparative Legal Studies. Russia on the Path of Globalization and Integration' (2012) ScientificWorksoftheComparative Law and Economics Institute named after A.S. Griboedov)
Ryazanovskiy V.A. K voprosu o vliyaniyi mongol'skoy kul'tury i mongol'skogo prava na russkuyu kul'turu i pravo/Voprosy istoriyi. 1993. N 7 (V.A. Ryazanovskiy, 'On the Issue of the Influence of the Mongolian Culture and Mongolian Law upon the Russian Culture and Law' (1993) 7 Issues of History)
Saidov A.H. Sravnitel'noye pravovedeniye/M.: 2003 (AH Saidov, Comparative Legal Studies (2003))
Vernadskiy G.V. Istoriya Rossii. Mongoly i Rus'/Tver': 1997 (GV Vernadskiy, History of Russia. Mongolians and Russia (1997))
Vernadskiy G.V. O sostave Velikoy Yasy Chingiskhana/Brussel': 1939 (GV Vernadskiy, On the Elements of the Great Yasa of GenghisKhan (1939))
Gennady V. Dashkov (Russia)
Doctor of science (Law), Academy of the Prosecutor General's Office of the Russian Federation, 1981
Professor, Kutafin Moscow State Law University
Merited Scientist of the Russian Federation
(1) Organizational formation of comparative law took place in 1900, when the first International Congress of Comparative Law was held in Paris. It turned the attention of the participating states to the need for the mutual studies of legislation and legal practice.
(2) These were fundamental ideas, which were meant to find common and differing features in over 200 national legal system. For more detail, see: David R, Les grands systemes de droit contemporains (Dalloz, Paris, 1964); R David, C Jioffre-Spinosi, Osnovniye pravoviye sistemy sovremennosti/M.: 1996 (R David, C Jioffre-Spinosi, Major Legal Systems in the World Today (1996)).
(3) Zaid Muhmoud Al-Aqaileh, 'Legal Cultures Dialogue: Benefits and Obstacles of Comparative Law Studies' (2013) 54 Journal of Sharia & Law 23.
(4) Oksamytnyi V.V., Vozniknoveniye i evolutsiya sravnitel'nogo pravovedeniya. Rossiya: na puti globalizatsiyi i integratsiyi/Institut mezhdunarodnogo prava i ekonimiki imeni A.S. Griboedova. 2012. S. 44-47. (VV Oksamytnyi, 'Appearance and Evolution of Comparative Legal Studies. Russia on the Path of Globalization and Integration' (2012) Scientific Works of the Comparative Law and Economics Institute named after A.S. Griboedov 44).
(5) SaidovA.H. Sravnitel'noye pravovedeniye/M.: 2003 (AH Saidov, Comparative Legal Studies (2003)).
(6) G.V. Vernadskiy G.V. Istoriya Rossiyi. Mongoly i Rus'/Tver': 1997 (GV Vernadskiy, History of Russia. Mongolians and Russia (1997)).
(7) See, Khoara-Davan E. Chingiskhan kak polkovodets i ego naslediye//Arabeski istoriyi. Pustynya Tartari. 1995. No. 2. S. 89-90. (E Khoara-Davan, 'GenghisKhan as a Chieftain and His Heritage' (1995) 2 Historical Arabesques.Tartary Desert 89); Juvayni Ala Ad Din Ata-Malik, Istoriya pokoritelya Vselennoy/ Rodina. 1997. N 3-4. (Ala Ad Din Ata-Malik Juvayni, 'History of the World Conqueror' (1997) 3-4 Rodina).
(8) Governance, Corruption, and Conflict (United States Institute of Peace, 2010).
(9) Vernadskiy G.V. O sostave Velikoy Yasy Chingiskhana/Brussel': 1939 (GV Vernadskiy, On the Elements of the Great Yasa of Genghis-Khan (1939)); Ryazanovskiy V.A. K voprosu o vliyaniyi mongol'skoy kul'tury i mongol'skogo prava na russkuyu kul'turu i pravo//Voprosy istoriyi. 1993. No. 7. (V.A. Ryazanovskiy, 'On the Issue of the Influence of the Mongolian Culture and Mongolian Law upon the Russian Culture and Law' (1993) 7 Issues of History).
(10) Imposing capital punishment in Russia is suspended with the Decision of the Constitutional Court of the Russian Federation of February 2, 1999 No. 3.
(11) The discussion of these matters from the criminological and criminal legal positions non-with standing common approval or disdain took place about 8 years ago. Dashkov G.V. Kreativniye vidy nakazaniya kak ugolovno-pravovaya i kriminologicheskaya kategoriya/Sbornik nauchnykh statey 'Nauka ugolovnogo prava i sovershenstvovaniye ugolovnogo zakonodatel'stva, Moskovskiy universitet MVD Rossii. 2007. S. 18-21. (GV Dashkov, 'Creative Punishments as a Category of Criminal Law and Criminology' (2007) Collected Articles. Science of Criminal Law and Improvement of Criminal Legislation. Moscow University of the Ministry of Interior of Russia 18).
(12) For more details, see: Egorova E. Pravitel'stvo vzyalos' za narkomanov/ Moskovskiy komsomolets. 2014. S.2. (E Egorova, Government Takes Care of Drug Addicts (2014) 2).
(13) Dashkov G.V. Kriminologicheskaya sushchnost' korruptsiyi i korruptsionnoy prestupnosti/Sovremenniye problemy ugolovnoy politiki. Materialy V Mezhdunarodnoy nauchno-prakticheskoy konferentsiyi. Krasnodarskiy universitet MVD Rossii. 2014. T 1. S.103-110. (GV Dashkov, 'Criminological Nature of Corruption and Corruption Crime' (2014) 1 Modern Problems of Criminal Policy. Materials of the V International Scientific and Practical Conference. Moscow University of the Ministry of Interior of Russia 103).
|Printer friendly Cite/link Email Feedback|
|Title Annotation:||CRIME PREVENTION: CONCEPTUAL DESIGN AND SOCIAL PRACTICES|
|Author:||Dashkov, Gennady V.|
|Publication:||Kutafin University Law Review|
|Date:||Apr 1, 2016|
|Previous Article:||The dispute between Boris Chicherin and Vladimir Solovyov on the nature of law and modern constitutionalism.|
|Next Article:||Developments of social (crime) prevention in Europe--a brief overview.|