Criminal Legal Means of Preventing Mercenary Crimes Committed

by Convicts during the Period of Serving Their Sentence

Dmitry Grishin

, Andrey Nuzhdin

, Mikhail Olenev

and Vera Yakovleva

Institute of the Federal Penitentiary Service of Russia, Moscow, Russia

Academy of Law and Management of the Federal Penitentiary Service of Russia, Ryazan, Russia

Keywords: Mercenarycrimes, Preventing, Criminal law impact, Convicted persons, Criminal legal means.

Abstract: In this article, the authors conduct a theoretical and legal assessment and analysis of the state's modern

criminal policy to counter the mercenary crime of convicts by criminal law means. The purpose of this study

is to consider the features of the use of these means aimed at preventing the examined crime. To achieve this

goal, the authors set and consistently solved the following tasks: developed a classification of criminal-legal

means of preventing mercenary crimes committed by convicts; the foreign experience of criminal-legal

prevention of mercenary crimes of convicts was considered; the features of the use of these means of a

criminal-legal nature in order to prevent the crime under investigation was analyzed. The methodological

basis of the study was made up of such methods as dialectical, logical, statistical, comparative-legal, analysis,

synthesis, etc. The study made it possible to draw conclusions and some generalizations, in particular, it was

concluded that criminal policy is designed to keep the level of crime in the area under consideration and to

counteract such crimes so that they are not destructive. Based on the analysis of doctrinal sources, scientific

researches, as well as foreign experiences, the article formulates a theoretical substantiation of the importance,

necessity and effectiveness of the use of criminal law means aimed at preventing mercenary crimes committed

by convicts. The results of this study can be used in the science of Russian criminal law with the aim of further

developing proposals for improving legislation and law enforcement practice.

1 INTRODUCTION

The problem of combating crime by criminal legal

means continues to be in the spotlight. As always, the

most economical and humane way to solve this

problem is to prevent it.

Contributing to the achievement of the goals and,

accordingly, the increase in the effectiveness of the

criminal law itself, this task should have a direct

impact on both lawmaking and law

enforcement(Lacey, Soskice, Hope, 2018). But,

despite this, federal laws and regulations aimed at

crime prevention do not effectively solve this

problem.

One of the markers indicating problems in this

aspect is criminality among persons against whom

measures of criminal legal action were applied. This

https://orcid.org/0000-0002-5987-4090

https://orcid.org/0000-0001-8761-140X

https://orcid.org/0000-0003-4011-1760

https://orcid.org/0000-0002-1645-3261

is evidenced by the growth trend in the proportion of

crimes committed by persons who did not serve

criminal punishment at the time of the crime. So, in

2020, among the convicts, 20.7% (104,942 persons)

at a time of committing a crime had not served their

sentence. In the general structure of crime among

convicts, 50.1% are crimes of a mercenary

orientation, which are formed by crimes in the field

of the economy, drug trafficking and corruption. At

the same time, the bulk of the mercenary crimes of

convicts (81.4%) are crimes against property. The

overwhelming majority of mercenary crimes were

committed by persons serving sentences not related to

isolation from society, which in general negatively

characterizes the existing organizational and legal

system for preventing crime of persons not related to

152

Grishin, D., Nuzhdin, A., Olenev, M. and Yakovleva, V.

Criminal Legal Means of Preventing Mercenary Crimes Committed by Convicts during the Period of Serving Their Sentence.

DOI: 10.5220/0010632700003152

In Proceedings of the VII International Scientiﬁc-Practical Conference “Criminal Law and Operative Search Activities: Problems of Legislation, Science and Practice” (CLOSA 2021), pages

152-157

ISBN: 978-989-758-532-6; ISSN: 2184-9854

imprisonment and criminal policy in general

(Goryainov, Kaluzhina, 2015).

The presented crime rates among convicts

indicate that law enforcement officials are not

interested in using criminal-legal crime prevention in

practice, since their main task is to detect crimes,

search for criminals, investigate criminal cases, and

also prosecute (Brandon, Gregory, Zimmerman &

Steven, 2017). Such circumstances do not sufficiently

contribute to solving the problem of crime

prevention.

In connection with the ongoing liberalization and

humanization of criminal policy, which has

actualized the importance of non-custodial

punishments and measures of a criminal-legal nature,

which undoubtedly requires a study of the problems

of prevention among convicts of repeated crimes,

including those of a mercenary nature. One of the

effective mechanisms for the prevention of

mercenary crime among convicts is special measures

of a criminal nature, with the help of which it is

possible to regulate the legal status of the convicted

person (Peeters, 2015).

The foregoing makes it necessary to revise

modern legislation in the field of combating crime, as

well as the criminal legislation of Russia in order to

systematize the preventive measures of a criminal

nature provided for by law.

In recent years, following researchers devoted

their study to the issues of criminal-legal crime

prevention to one degree or another: R.A. Bazarov

(2018); M.V. Baranchikova (2015); Goryainov K.K.

(2015); I.V. Dvoryanskov and D.I. Ivanov (2015);

V.I. Zubkova (2017); M.V. Kovalev (2018); T.V.

Nepomnyachshaya (2017); T.N. Nurkaeva (2015);

A.V. Sinelnikov (2015); Yu.V. Truntsevsky (2015);

A.S. Shuisky (2018), S.I. Kurilov (2019) and others.

2 MATERIALS AND METHODS

In the process of preparing this article, the

methodological basis was formed by the universal

method of scientific cognition - materialistic

dialectics, within which a set of general scientific and

specific scientific methods of cognition was applied.

At the initial stage of this scientific research,

including considering certain areas of criminal-legal

prevention of mercenary crime of convicts, universal

methods of cognition were used: analysis and

synthesis. At the next stage of scientific research,

including considering various points of view of

scientists, a logical method was used; in the process

of analyzing the practice of using criminal-legal

means of prevention, various empirical methods were

used.

At the final stage, including considering the

possibility of applying special measures of a criminal

nature within the framework of criminal law and

criminological activity, the dialectical method of

scientific knowledge was used. When describing the

results of this scientific research, the method of

generalization with elements of deduction was mainly

used.

3 RESULTS AND DISCUSSION

The conducted research of Russian and foreign

criminal legislation revealed the following types of

forms of crime prevention: the very norms that

establish criminality and punishability of acts, within

the framework of which general and private

prevention is implemented; criminal systematization

of repeated mercenary crimes, which allows to form

a unity of approach to the punishability of acts; norms

that have a qualifying feature, providing for the

application of the legal institution of repetition; norms

with elements of general prejudice.

In the current Criminal Code of the Russian

Federation, within the framework of the prevention of

mercenary crime of convicts, only three of the above

forms of prevention are implemented: norms

establishing criminality and punishability of acts,

norms with administrative prejudice and norms with

the institution of repetition, and the last two means of

prevention are not developed significantly.

Analyzing the system of criminal-legal means of

preventing the mercenary crime of convicts, one

should point out its rather complex nature. When

considering the criminological indicators of this

crime of convicts, we considered only those that form

the overwhelming mass in the volume of mercenary

crime of convicts, within four groups: crime against

property, in the sphere of economic activity, in the

sphere of drug trafficking and corruption crimes.

The largest share in the mercenary crime of

convicts (94.7%) is formed by crimes against

property, among which, in turn, the largest part (77%)

is theft, whose percentage in the total structure of

thefts is 24.9%. The intensity compared to the general

level higher by 29.2%, which, despite the decrease in

the share of thefts in the structure of the crime of

convicts and their percentage, should be considered

as a negative criminological characteristic of the

crime of convicts. Similar patterns can be seen in

relation to robberies, banditry and extortion, whose

share at the group level is higher than at the general

Criminal Legal Means of Preventing Mercenary Crimes Committed by Convicts during the Period of Serving Their Sentence

153

level and amounts to 6.7%. The intensity among

convicted persons is 22.3% higher than among

persons who are not serving at the time of the

commission of a crime. In addition, there is a negative

trend towards an increase in fraud, embezzlement and

misappropriation among convicted persons by 21%.

Based on the system-forming feature - the

presence of the goal of extracting material or other

benefits of a material nature, which, in one way or

another, is associated with selfish motivation, we can

propose the following systematization of the means

of preventing the mercenary crime of convicts:

- the first systematization is based on the presence

in the formulations of the dispositions of norms of the

mention of self-interest (selfish interest and selfish

motives, as well as a selfish goal).

- other means of preventing the mercenary crime

of convicts, presented in the norms of the Special Part

of the Criminal Code of the Russian Federation

without mentioning the selfish motivation of the

crime, are also subject to systematization, which may

be based on the nature of the object of criminal law

protection.

As we can see, there are a lot of acts committed

with the aim of extracting material benefits or

obtaining other property benefits. In combination

with the norms, in the disposition of which there is a

mention of selfish motivation, a wide range of means

of combating these crimes is formed, as well as means

of their criminal-legal prevention, acting both within

the framework of general and private prevention. At

the same time, it is obvious that both considered

groups of means of criminal-legal prevention should

be considered in a complex, which requires their

classification.

More convenient, according to the authors, is the

classification based on the nature of the object of

criminal law protection, within which it is advisable

to group the investigated means of criminal law

prevention by the nature of the disposition of the

norm. Thus, the list of means of criminal-legal

prevention of mercenary crime of convicts includes

13 groups, which testifies to the broad mechanism of

criminal-legal crime prevention through the norms of

the Special Part of the Criminal Law.

The study of the preventive potential of the norms

of the Special Part is impossible without a legal

assessment of the main signs of an objective and

subjective nature that form them, which will reveal

the general approaches of the legislator to the design

of those mechanisms, the implementation of which

has a preventive value.

It should be noted that in the Criminal Code of the

Russian Federation, mercenary crimes are

concentrated in different sections and chapters of the

Special Part, which indicates the presence of

significant differences within the framework of

generic and specific objects. Actually, this objective

difference lies at the heart of one of the classifications

we have previously considered of the investigated

means of criminal-legal prevention of mercenary

crime of convicts. Moreover, there are no provisions

in the criminal legislation indicating the presence of

systemic unity among the norms establishing criminal

liability for mercenary encroachments, despite the

presence of obvious similarities in terms of subjective

characteristics.

However, in a number of foreign states, there are

some definitions that make it possible at the

legislative level to determine the unity of the legal

system of responsibility for mercenary crimes. For

example, in the Criminal Code of Germany, Section

25 «Punished greed» is specially highlighted. Interest

in this case is the basis for the grouping of norms,

which is the characteristic of the subjective side,

expressed in the presence of selfish motivation, which

allowed this legislator to combine within one section

such different acts as § 284 «Unauthorized

organization of gambling»; § 291 «Usury»; § 292

«Poaching»; § 297 «Endangering ships, road and air

transport by means of prohibited cargo» (German

Laws, 1998).

Similar acts in the Criminal Code of the Federal

Republic of Germany are concentrated in other

sections, the names of which are formulated in

accordance with the characteristics of the objective

side of the crime, for example, Section 19 «Theft and

appropriation», Section 20 «Robbery and extortion»,

etc. In addition, the Criminal Code of the Federal

Republic of Germany contains three more norms, in

the dispositions of which self-interest is mentioned -

murder and trafficking in children, as well as a

particularly serious case of a punishable act against

the environment for selfish motives (part 4 § 330). In

general, such a systematization reflects the specifics

of German legal technology and does not pursue the

goal of forming a comprehensive institution of

criminal legal protection of public relations from

mercenary encroachments (Boers, Walburg, Kanz,

2017).

The Belarusian legislator approached the

systematization of mercenary crimes somewhat

differently. In the Criminal Code of the Republic of

Belarus, as well as in Germany, there is no uniform

systematization of mercenary crimes. However, the

systematization of theft - the most widespread

mercenary crimes- has been formulated. Specifically,

Note 1 to Chapter 24, Crimes Against Property,

CLOSA 2021 - VII INTERNATIONAL SCIENTIFIC-PRACTICAL CONFERENCE “CRIMINAL LAW AND OPERATIVE SEARCH

ACTIVITIES: PROBLEMS OF LEGISLATION, SCIENCE AND PRACTICE”

154

provides a definition of embezzlement. Unlike Note

1 to art. 158 of the Criminal Code of the Russian

Federation, the idea of embezzlement in the Criminal

Code of the Republic of Belarus is much wider and,

in addition to theft, robbery, banditry, fraud,

appropriation and embezzlement, there is also a

deliberate unlawful gratuitous acquisition of other

people's property or the right to property for a

mercenary purpose through extortion, abuse of

official powers and the use of computer technology

(Criminal Code of the Republic of Belarus, 1999–

2019).

Note 2 to Chapter 24 of the Criminal Code of the

Republic of Belarus reveals the concept of repeated

theft, which further expands the understanding of the

system of mercenary crime under the legislation of

the RB. The category of repetition itself, according to

Art. 41 of the Criminal Code of the RB presupposes

the commission of similar or identical crimes in cases

specifically provided for by the Special Part of the

Criminal Code of the RB, regardless of whether a

person is serving a sentence or not, therefore it is quite

consistent with the subject of our scientific interest.

The significance of this legal institution lies in the fact

that special repetition is considered as a qualifying

feature, which naturally leads to an increase in the

limits of punishment and, accordingly, enhances the

direct impact of private prevention and psychological

impact within the framework of general prevention.

It should be noted that this legal institution is

absent in the criminal legislation of the Russian

Federation, however, there is an institution of

repetition, regulated in the norms of the Special Part

of the Criminal Code of the Russian Federation,

mainly in the context of administrative prejudice,

including in relation to certain mercenary crimes

(Art.151.1 of the Criminal Code of the Russian

Federation; art. 157 of the Criminal Code of the RF,

art. 158.1 of the Criminal Code of the RF, art. 171.4

of the Criminal Code of the RF), which do not change

the legal status of a convicted person in case of

commiting a similar crime and, accordingly, cannot

be considered as direct means of preventing the

recurrence of a crime, however, in general, the

preventive value of administrative precedence is

difficult to overestimate since the presence of this

legal institution in any case contributes to the

provision of a positive preventive effect on a person

who has the inclinations of criminalization

(Savelyeva, 2019), expressed in the repetition of

socially harmful behavior.

A person prosecuted for a socially harmful

mercenary crime, for which he has already been

brought to administrative responsibility, reveals the

social danger of his repeated unlawful behavior and

the criminal deprivation of his personality

(Yakovleva, 2020). Accordingly, bringing him to a

stricter type of punitive liability, in addition to private

prevention, also implements an educational function

that demonstrates to the guilty person, using the

example of the discrepancy between the degree of

punishment of the act and its actual nature, the

undesirability of continuing unlawful behavior

(Heap, Black, 2021).

Continuing the assessment of the significance of

the criminal law systematization of mercenary crimes

in the framework of the prevention of mercenary

crimes, we note the Norwegian experience, which is

characterized by a wide coverage of mercenary

crimes. In particular, Section 263 of Chapter 24

«Embezzlement, Theft and Illegal Use» of the

Norwegian Penal Code states that if a person accused

of embezzlement or theft has previously been

punished with imprisonment under both Chapter 24

and Chapters 17, 18, 25, 26, 27 punishment can be

increased up to 50% (Criminal Code of Norway,

1902–2003).

It should also be noted that the institution of

repetition is applied in relation to certain types of

crimes in a number of foreign countries.

So, in Moldova, the institution of repetition, as a

qualifying feature in the norms of the Special Part of

the Criminal Code of the Republic of Moldova, is

fixed mainly in crimes against the person - murder,

crimes against sexual freedom and privacy, including

in mercenary crimes against the person - Trafficking

in human organs, tissue and cells (art. 158); Human

trafficking (art. 165); as well as in mercenary crimes

against family and minors (art. 206 «Trafficking in

children») and mercenary crimes against health and

community (Art. 217-1 «Illegal trafficking in drugs,

ethnobotanical means or its analogs for the purpose

of alienation») (Criminal Code of the Republic of

Moldova , 2002).

In the Criminal Code of China, the institute of

repetition is provided for only in one norm of the

Special Part (in Art. 356 of the Criminal Code of the

PRC), but by its action it covers the acts provided for

in §7. «Smuggling, sale, transportation, production of

drugs». The measures of influence proposed by this

norm are of interest (Criminal Code of the People's

Republic of China, 1997). According to its

provisions, the commission of crimes from this

paragraph by a person previously convicted of such

crimes is punished with the most severe punishment

provided for in the articles of this paragraph

(Bussmann, Niemeczek, Vockrodt, 2017).

Criminal Legal Means of Preventing Mercenary Crimes Committed by Convicts during the Period of Serving Their Sentence

155

Considering the social significance of the

institution of repetition, taking into account the

presence in the criminal legislation of Russia of

norms providing for an administrative prejudice and

the institute of repetition in relation to Art. 291.2 of

the Criminal Code of the Russian Federation and to

crimes against sexual freedom and privacy, as well as

the spread of this legal institution abroad, we believe

it is possible to restore it in the Criminal Code of the

Russian Federation, but in terms of the repetition of

criminal behavior by a person serving a sentence and

only for such crimes as embezzlement, a number of

mercenary economic crimes, drug trafficking and

corruption crimes.

At the same time, among the group of crimes we

are investigating (within the framework of qualified

compositions involving the addition of a sign of

repetition), such a type of punishment as

imprisonment does not directly affect the property

interests of the convicts, is not always supported by

additional punishment that complements the main

punishment by affecting these interests and therefore,

there is no reinforcing preventive effect of the

investigated measure of a criminal-legal nature

(Yakovleva, 2020).

For example, imprisonment does not imply the

appointment of a fine as an additional type of

punishment for such compositions as Part 2 of art.

159, part 2 of art. 159.1, part 2 of art. 159.2, part 2 of

art. 159.3, part 2 of art. 159.5, part 2 of art. 159.6, part

2 of art. 160, part 2 of art. 166, part 2 of art. 194, part

2 of art. 198, part 2 of art. 199, part 2 of art. 201, part

2 of art. 202, part 2 of art. 234.1 of the Criminal Code

of the Russian Federation. Moreover, this

circumstance is surprising in relation to fraud, which

traditionally refers to crimes within which criminal

professionalism develops, and they, like professional

crimes, are transformed depending on the

development of public relations (van der Geest,

Weisburd, Blokland, Arjan, 2017).

Considering that the most important sign of

professional crime is the constancy of criminal

activity and its assessment as the main source of

income (Omigov, 2011), it seems that the

effectiveness of the punishability of crimes that reveal

certain signs of professionalism (in particular,

repetition) requires the influence of property in order

to mimimise the economic expediency of such

activities.

In general, the foregoing, in our opinion, makes it

possible to propose to expand the preventive effect of

imprisonment in accordance with the specified norms

by envisaging a fine as an additional punishment.

This contributes to the enhancement of the punitive

effect of punishment, which in aggregate will affect

not only personal freedom, but also property interests

that underlie the criminal motivation of the

investigated acts (Goryainov, 2015). Accordingly,

general and private prevention from such punishment

will be of a deeper nature, and rely on the greater

undesirability of the onset of the criminal legal

consequences of the committed crimes (Zedner,

Ashworth, 2019).

We believe it is permissible to make an

appropriate addition to the criminal legislation. The

proposed change is of a casuistic nature, since it

correlates the features of the application of

punishment with specific types of criminal offenses.

This technique is generally typical for the legal

technique used in the criminal law (Pronina, 2016).

4 CONCLUSIONS

Considered in the course of the research carried out

by the author, the features of criminal legal means

aimed at preventing the mercenary crime of convicts,

as well as some areas of their implementation in

foreign countries, made it possible to draw

conclusions that are the theoretical basis necessary for

the implementation of the tasks of criminal

legislation, especially crime prevention.

The result of this work is also substantiated

proposals and recommendations aimed at improving

certain preventive measures of a criminal nature and

the mechanism for their implementation in the system

of criminal-legal prevention of mercenary crimes

committed by convicts, which contributed to the

solution of the tasks.

Based on the foregoing, it can be argued that the

use of criminal law measures in the prevention of

mercenary crimes committed by convicts should be

carried out in the following directions:

- the classification of the means of criminal-legal

prevention of mercenary crime of convicts proceeds

from two criteria: the presence of norms, the

dispositions of which mention selfish motivation and

the actual content of these norms, which presuppose

its presence.

- in order to improve the mechanism of criminal-

legal prevention of mercenary crimes of convicts,

including in the framework of preventing the

development of professional crime and

criminalization of the individual, it is necessary to

amend the current Criminal Law of Russia, providing

for the institution of repetition;

- in all corpus delicti, in which it is necessary to

include the institution of repetition, a fine should be

CLOSA 2021 - VII INTERNATIONAL SCIENTIFIC-PRACTICAL CONFERENCE “CRIMINAL LAW AND OPERATIVE SEARCH

ACTIVITIES: PROBLEMS OF LEGISLATION, SCIENCE AND PRACTICE”

156

provided as an additional punishment to

imprisonment, which in turn will significantly

increase the preventive effect of punishments for

mercenary crimes committed by convicts due to

criminal law impact on their property interests.

REFERENCES

Lacey, N., Soskice, D., Hope, 2018. Understanding the

Determinants of Penal Policy: Crime, Culture, and

Comparative Political Economy. In The Annual Review

of Criminology.

Goryainov, K. K., Kaluzhina, M. A., 2015. Some measures

to improve control and supervision of convicts without

imprisonment. Materials of the III All-Russian

Scientific and Practical Conference: Imposition of

punishments not related to imprisonment. Samara,

Russia.

Brandon, C., Gregory, M., Zimmerman & Steven N., 2017.

The Centrality of Theory in Modern Day Crime

Prevention: Developments, Challenges, and

Opportunities. In Justice Quarterly.

Peeters, R., 2015. The price of prevention: The preventative

turn in crime policy and its consequences for the role of

the state. In Economics. Punishment & Society.

Strafgesetzbuch in der Fassung der Bekanntmachung vom

13. November 1998 (BGBl. I S. 3322), das zuletzt

durch Artikel 1 des Gesetzes vom 9. Oktober 2020

(BGBl. IS. 2075) geändert wordenist,

http://www.gesetze-im-internet.de/stgb/BJNR00127

0871.html

Boers, К., Kanz, К., 2017. Crime, crime control and

criminology in Germany. In European Journal of

Criminology.

Savelyeva, O. Yu., 2019. Institute of Administrative

Prejudice in Modern Criminal Law. In Baltic

Humanitarian Journal.

Yakovleva, V. M., 2020. On the issue of countering the

mercenary crime of convicts and the place in it of

criminal-legal prevention. In Civil service and

personnel.

Heap, V., Black, Z., 2021. Rodgers Preventive justice:

Exploring the coercive power of community protection

notices to tackle anti-social behavior. In Punishment &

Society.

Bussmann, D., Niemeczek, А., Vockrodt, M., 2017.

Company culture and prevention of corruption in

Germany, China and Russia. In European Journal of

Criminology.

Yakovleva, V. M., 2020. On some features of the

prevention of mercenary crime convicted by criminal

law means. In Humanities, socio-economic and social

sciences.

Victor R., Weisburd, D., Blokland, A., 2017.

Developmental trajectories of offenders convicted of

fraud: A follow-up to age 50 in a Dutch conviction

cohort. In European Journal of Criminology.

Omigov, V. I., 2011. Professional crime: its modern

content. In Criminology: yesterday, today, tomorrow.

Zedner, L., Ashworth, А., 2019. The Rise and Restraint of

the Preventive State. In Annual Review of Criminology.

Goryainov, K. K., 2015. Issues of control over convicts

serving sentences outside prisons: II International

Penitentiary Forum «Crime and Punishment,

Reformation» (on the 60th anniversary of the adoption

of the Minimum Standard Rules for the Treatment of

Prisoners and the 30th anniversary of the adoption of

the concerning the administration of juvenile justice).

Nov. 25-27, Ryazan, Russia.

Pronina, M. P., 2016. Methods for constructing the norms

of criminal legislation. Gaps in Russian legislation. In

Legal journal.

Criminal Legal Means of Preventing Mercenary Crimes Committed by Convicts during the Period of Serving Their Sentence

157