Violation of the rules of qualification cannot compensate gaps in the criminal law

Correct qualification guarantees the legitimacy of criminal and legal influence, most fully reveals its preventive and punitive potential. But often it is the application of criminal law to specific cases that allows us to draw attention to the existing gaps and shortcomings in criminal law regulation. The authors consider the complex problem of the qualification of provocation of bribery (Article 304 of the Criminal Code of the Russian Federation), and falsification of the results of operational and investigative activities (Part 4, Article 303 of the Criminal Code of the Russian Federation), which caused serious consequences resulted in illegal criminal prosecution or prolonged imprisonment. Critically tested is the practice of charging the guilty with one of the special norms (Article 304 of the Criminal Code of the Russian Federation, Part 4, Article 303 of the Criminal Code of the Russian Federation) along with the article providing for the responsibility for the abuse of office, which caused serious consequences (Item «в», Part 3, Article 286 of the Criminal Code of the Russian Federation). Violation of the rules, when a single act of an official is qualified by both the special and the general norm, is explained by the need to take into account the serious consequences of operational provocation. Unlike falsification of evidence, where the onset of serious consequences is provided for as an aggravating circumstance (Part 3, Article 303 of the Criminal Code of the Russian Federation), liability is not differentiated concerning falsification of the results of operational and investigative activities. But the unaccounted by legislators manifestation of public danger of the already prohibited infringement does not give the law enforcers the right to compensate the shortcomings of criminal law by building the qualification formulas which violate its fundamental beginnings. Crimes under Article 4. 303 of the Criminal Code of the Russian Federation and Item «в», Part 3, Article 286 of the Criminal Code of the Russian Federation, cannot form the ideal totality. And the real totality is possible only when the subject, besides falsification of evidence, commits other actions that go beyond his official powers. The occurrence of serious consequences after the provocation of bribery or falsification of the results of operational and investigative activities can be taken into account in the sentencing of the guilty official (Item «в», Part1, Article 63 of the Criminal Code of the Russian Federation). It should be agreed that sometimes the differentiation of liability, not through qualifications but within the framework of the sanction of the relevant norm, may not provide a fair punishment. The reason for this is the gaps in the reflection in the criminal norms of significant variations in the public danger of actual encroachments, the insufficient social conditioning of the criminal law. Meanwhile, the legislators' incorrect assessment of the public danger of a crime, the lack of differentiation of liability for its commission depending on the immediate or remote serious consequences, cannot serve as the grounds for violation of doctrinal rules of qualification or compromise attitude.

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