Институциональные препятствия к возбуждению уголовного дела

Право. Журнал Высшей школы экономики. 2021. № 1. С. 107–129.

Купцов И. А.

The nature of institutional obstacles to initiating a criminal case is analyzed in the article. By virtue of Part 8 of Art. 448 of the Code of Criminal Procedure of the Russian Federation initiation of a criminal case under Art. 305 of the Criminal Code is possible only after a preliminary reasoned judgment of a higher court (in relation to the court that adopted the unjust judicial act) on the circumstances that indicate the commission of this crime. The given example reveals in detail the problems of such legal regulation, and also analyzes other elements of a crime, which, as a basis for criminal liability, presuppose the presence of a preliminary motivated judgment about the circumstances that subsequently become the subject of proof in a criminal case (Articles 157, 197 of the Criminal Code). The presence of institutional obstacles to the initiation of a criminal case, in particular, prejudgment, raises the question of the legal nature of this institution, since in case of prejudgment, criminal prosecution is possible only subject to a preliminary motivated judgment of one or another state body. Based on the example of the historical comprehension of similar provisions (part 1.1 of Article 140 of the Criminal Procedure Code), the conclusion is drawn about the dual material-procedural nature of this institution, as well as the fact that when such provisions are included in the Criminal Procedure Code of Russia, it is necessary to change the criminal law. Consistent, predictable legal regulation can be ensured only if the introduction of institutional obstacles to the initiation of a criminal case is simultaneously accompanied by a change in the norm of the criminal law by fixing the condition of punishment in its hypothesis. Ignoring the material and legal component will lead to a violation of the constitutional principles of action in time of the law that worsens the punishment, namely Part 2 of Art. 54 of the Constitution of the Russian Federation in the interpretation given by the Constitutional Court, as well as in violation of paragraph 1 of Art. 7 of the European Convention for the Protection of Human Rights and Fundamental Freedoms as interpreted by the European Court of Human Rights.

Keywords: criminal proceedings, возбуждение уголовного дела, collateral estoppel, legal certainty, межотраслевая преюдиция, grounds for criminal liability, conditions of punishment, Article 7 of the European Convention on Human Rights, основание уголовной ответственности, предсудимость, исключительный повод, условия наказуемости, статья 7 Европейской конвенции по правам человека