CRIMINAL LEGAL CHARACTERISTIC OF VIOLATION OF SANITARY AND EPIDEMIOLOGICAL RULES

Abstract

The article considers the corpus delicti provided for in Article 236 of the Criminal Code of the Russian Federation. The analysis of changes in the penal provision is carried out as well as their impact on the criminalization of the act. The current problems of law enforcement practice and delineation from a similar composition of an administrative offense are considered. Proposals are being formulated for improving the legislation.

Full Text

Decree of the President of Russia dated 02.07.2021 No. 400 “On the National Security Strategy of the Russian Federation” named as the national interest of the Russian Federation the saving of the people of Russia and the development of human potential, which, according to paragraph 31 of the above-mentioned Decree, is carried out through a set of measures to which include the unconditional implementation of the sanitary and epidemiological welfare of the population throughout the country [1]. Achieving this goal is possible through the comprehensive adoption of measures aimed at encouraging citizens to comply with anti-epidemiological requirements and hygiene standards. One of the possible ways to implement this task is the use of the preventive method of legal regulation. Public health as an object of criminal law protection is of the greatest interest in connection with the spread of coronavirus infection (2019-N CoV), included in the List of diseases that pose a danger to others, by Government Decree No. 66 of January 31, 2020 [2].
Responsibility for violation of sanitary and epidemiological rules is provided for by Art. 236 of the Criminal Code of the Russian Federation. It is worth noting that this criminal law norm was amended by the Federal Law No. 100-FZ of April 1, 2020 “On Amendments to the Criminal Code of the Russian Federation and Articles 31 and 151 of the Code of Criminal Procedure of the Russian Federation” [3]. The transformation made affected the structure of the crime, and therefore, caused a mixed assessment among researchers.
Adhering to the traditional approach to the analysis of the corpus delicti, it is necessary to determine the object of the crime. The criminal legislation of the Russian Federation, taking into account the division of the Criminal Code of the Russian Federation into chapters, sections and specific articles, uses the classification of objects “vertically” and includes general, generic, specific and direct objects. According to the doctrinal point of view, the common object is understood as all social relations protected by criminal law, and, consequently, the common object itself seems to be axiomatic. The generic object of the crime in question is public safety and public order. It seems undeniable that the spread of a mass disease characterized by high mortality and a rapid mechanism of transmission can undoubtedly cause mass riots, and also encroaches on the constitutional guarantees of citizens for the protection and protection of health. In accordance with this classification, the specific object of the corpus delicti is defined as public health and public morality. The immediate object is public health.
It should be noted that the violation of sanitary and epidemiological rules under Art. 236 of the Criminal Code of the Russian Federation, belongs to the category of multi-objective crimes, that is, in addition to causing harm to the direct object, a threat of harm is created within the framework of a qualified composition of human life.
The conclusion about the recognition of human health as an additional object of a crime is confirmed in the answer to question 14 of the Review on certain issues of judicial practice related to the application of legislation and measures to counter the spread of a new coronavirus infection (COVID-19) No. 2 in the Russian Federation, approved by the Presidium of the Supreme Court of the Russian Federation April 30, 2020 [4]. Thus, the Supreme Court points out that when determining the mass character of a disease (poisoning), attention should be paid not only to the actual number of cases, but also to the severity of the disease (poisoning). In practice, the mark on taking into account the severity of the disease or poisoning is reflected in determining the severity of the harm caused by the crime to the victims. For example, Decree No. 1-394/2019 dated December 30, 2019 of the Amur City Court states that the criminal act of the defendant V., expressed in non-compliance with sanitary and epidemiological rules, caused slight harm to the health of 239 visitors to the establishment where she worked as a cook [ 5]. A similar analysis of the severity of harm to health is also present in sentence No. 1-27/2020 1-733/2019 dated February 4, 2020 of the Syktyvkar City Court of the Republic of Komi: the result of K.’s violation of the basics of hygiene and sanitary and epidemiological rules in the performance of official duties was that that the dishes prepared between 04/05/2018 and 04/06/2018, and eaten by pupils and employees of the kindergarten during the specified period, were contaminated. As a result, the pupils and employees of the institution consumed their food, which led to their infection and the infection of their relatives, and was also a direct consequence of the mass disease in the period from 04/05/2018 to 04/14/2018 with salmonellosis of pupils, employees of the institution, persons from among their relatives in different forms. The transferred disease caused harm to the health of moderate severity to one victim; sixty-seven - slight harm to health; Twelve victims were not harmed [6].
The objective side of the considered corpus delicti is expressed in violation of sanitary and epidemiological rules. According to the explanatory dictionary of the Russian language V.I. Dalia to violate means not to observe, to act contrary to something [7]. It is not difficult to understand that a violation is always a failure to comply with established norms and prohibitions, an action that is contrary to the established order. In the criminal act under study, a violation implies non-compliance with the rules and regulations established by the state in the field of epidemiological well-being of the population. In itself, a violation of sanitary and epidemiological rules can be expressed both in an active form, i.e. in action, and in passive - inaction.
According to Article 1 of the Federal Law of March 30, 1999 No. 52-FZ “On the sanitary and epidemiological well-being of the population”, sanitary and epidemiological requirements are mandatory requirements for ensuring the safety and (or) harmlessness to humans of environmental factors, the conditions for the activities of legal entities and citizens , including individual entrepreneurs, territories used by them, buildings, structures, structures, premises, equipment, vehicles, non-compliance with which creates a threat to human life or health, the threat of the emergence and spread of diseases and which are established by state sanitary and epidemiological rules and hygienic standards, and with regard to the safety of products and the processes of production, storage, transportation, sale, operation, application (use) and disposal related to the requirements for products, which are established by documents adopted in accordance with international treaties of the Russian Federation, and technical regulations [8].
Thus, from the analysis of the above definition, it follows that the sanitary and epidemiological rules are mandatory requirements for ensuring the safety and (or) harmlessness to humans of environmental factors, the conditions for the activities of legal entities and citizens, including individual entrepreneurs, the territories they use, means non-observance of which poses a threat to life or health.
To determine a more specific regulatory framework necessary for qualifying an act as a criminal violation of sanitary and epidemiological rules, it is necessary to refer to Article 3 of the Federal Law of 30.03.1999 No. 52-FZ "On the sanitary and epidemiological welfare of the population" establishing that the legislation area of ​​ensuring the sanitary and epidemiological welfare of the population is based on the Constitution of the Russian Federation and consists of the aforementioned federal law and other federal laws, as well as other regulatory legal acts of the Russian Federation adopted in accordance with them, laws and other regulatory legal acts of the constituent entities of the Russian Federation, regulatory legal acts public authorities of the federal territory "Sirius" [8].
As noted earlier, the objective side of the crime is represented not only by a socially dangerous act, but also contains other signs that require coverage within the framework of the composition under study. First of all, these are socially dangerous consequences in the form of a mass disease or poisoning of people or the creation of a real threat of such consequences in terms of the first criminal law norm under study. In part 2 of article 236 of the Criminal Code of the Russian Federation, the death of a person acts as a socially dangerous consequence, and in part three - the death of two or more persons.
Thus, in Part 1 of Article 236 of the Criminal Code of the Russian Federation, the offense is characterized as delicto-hazardous-material, and in Parts 2 and 3 - as material.
Recognizing the corpus delicti provided for in Part 1 of Article 236 of the Criminal Code of the Russian Federation as partly material, that is, the mandatory signs of the objective side of which include a socially dangerous act, socially dangerous consequences and a causal relationship between them, we consider it necessary to dwell on the characteristics of a mass diseases and poisoning.
There is no legal definition of these terms. However, the disease, according to paragraph 16 of Article 1 of the Federal Law of November 21, 2011 No. 323-FZ “On the Fundamentals of Protecting the Health of Citizens in the Russian Federation”, is a violation of the body’s activity, working capacity, ability to adapt to changing conditions of the external and internal environment while changing the protective-compensatory and protective-adaptive reactions and mechanisms of the body [9]. According to this regulatory legal act, all diseases, according to the nature of their occurrence, are divided into infectious and non-infectious.

The above federal law contains the following definitions:
- infectious diseases - human infectious diseases, the occurrence and spread of which is due to the impact on humans of biological factors of the environment (causative agents of infectious diseases) and the possibility of transmitting the disease from a sick person, animal to a healthy person;
- mass non-communicable diseases (poisoning) - human diseases, the occurrence of which is caused by the influence of physical and (or) chemical, and (or) social factors of the environment.
However, the above definitions do not allow us to make a specific conclusion about what should be understood by the terms "disease" and "poisoning" in the criminal law sense within the framework of the composition under study. Such a legislative omission in practice leads to a broad interpretation of these concepts. Law enforcers are forced to interpret these consequences on the basis of logical considerations, which is undoubtedly unacceptable.
For a more accurate understanding of the term "disease" it seems necessary to refer to medical dictionaries. So, according to the Great Medical Encyclopedia: “a disease is a disease in an individual, a case of a disease” [10]. In the encyclopedic dictionary of medical terms [11], a disease also means the fact that a disease occurs in an individual. The term disease, in accordance with the encyclopedic dictionary of medical terms, should be understood as "a life disturbed in its course by damage to the structure and functions of the body under the influence of external or internal factors during reactive mobilization in qualitatively peculiar forms of its compensatory-adaptive mechanisms" [11. P. 111] In a brief medical encyclopedia, a disease is “a violation of the normal functioning of an organism that has arisen under the influence of damaging factors on it or due to malformations, as well as genetic defects” [12]. Therefore, the disease may arise due to a criminal act as an external factor or independently of it, for example, in the case of genetic defects as internal factors. When formulating a criminal law norm, the legislator does not indicate the nature of the disease, i.e. does not specify which diseases are criminalized. Naturally, the violation of sanitary and epidemiological rules implies the spread of a disease of an infectious nature, the development of which is provoked by environmental factors.
In accordance with paragraph 16 of Article 1 of the Federal Law of November 21, 2011 No. 323-FZ “On the Basics of Protecting the Health of Citizens in the Russian Federation”, poisoning is recognized as a mass non-communicable disease. In medicine, the use of the term "poisoning" is considered deprecated and is replaced by the synonymous term "intoxication". So, according to the Big Dictionary of Medical Terms and the Encyclopedic Dictionary of Medical Terms, intoxication is "a pathological condition caused by the general effect on the body of toxic substances of endogenous or exogenous origin." In accordance with the concise medical encyclopedia, intoxication is “a pathological condition caused by the action on the body of toxic substances that have entered it from outside or formed in the body itself.”
Thus, the terms “disease” and “poisoning” used by the legislator in the criminal law norm provided for in Part 1 of Article 236 of the Criminal Code of the Russian Federation are evaluative.
It should be noted that an important criterion in the issue of bringing a person to criminal responsibility is the presence of such an evaluation feature as the mass character of the disease or poisoning. In response to question 14 of the Review on certain issues of judicial practice related to the application of legislation and measures to counter the spread of a new coronavirus infection (COVID-19) No. 2 in the Russian Federation, approved by the Presidium of the Supreme Court of the Russian Federation on April 30, 2020 [4], the estimated the nature of this feature. The Supreme Court of the Russian Federation points out that when deciding whether to classify a disease or poisoning as mass, one should take into account not only the number of sick or poisoned people, but also the severity of the disease (poisoning). Thus, the Supreme Court imposes on judges the obligation to assess the sign of a massive socially dangerous consequence in the form of a disease (poisoning), which has not so much legal as medical and epidemiological characteristics. In this regard, it seems not objective to impose this duty on judges, since for a correct assessment it is necessary to have special knowledge that judges clearly do not possess. At the same time, the Supreme Court, supplementing its response, gives judges the right to involve relevant specialists to determine the extent of the disease or poisoning. In practice, judges either refuse to assess the mass character at all, which is a direct violation of the criminal procedure law, or involve specialists.

The second option seems to be the only true way to determine the criterion of the mass character of the indicated socially dangerous consequences. Also, the relationship between the severity of the disease or poisoning and the sign of mass character is not clear. In the above definitions, this characteristic is absent at all. In this regard, the question arises: what is the impact of the severity of the disease (poisoning) on ​​the mass character of these consequences? In practice, the court does not delve into this issue and stops only at ascertaining the fact of causing harm to health of a certain severity to the corresponding number of persons. This approach seems to be correct, since based on the literal interpretation of the corpus delicti, the severity of the disease (poisoning) has no criminal legal significance. An act is recognized as a crime if the result was the onset of a disease or poisoning of an indefinite number of persons, regardless of the severity of the harm caused to health.
An interesting feature of the studied composition is the use in the form of a socially dangerous consequence of the threat of the onset of a mass disease or poisoning of people. In this regard, Yu.S. Norvartyan [13] rightly states: “From the standpoint of the legislator, in this provision (part 1 of article 236 of the Criminal Code of the Russian Federation), the threat is considered not as an act, but as a socially dangerous consequence.” O. I. Korostylev gives the following definition of a threat-consequence: “A threat in the composition of putting in danger is a constructive sign of a crime – a consequence characterized by a real possibility of harm occurring, accompanied by a mental impact on the person (s) who is (s) the object of the threat , in case of his (their) awareness. A mandatory sign of such a threat is a real possibility of harm, an optional one is mental violence. [fourteen]
When characterizing the threat, many researchers consider it necessary to have the reality of the onset of socially dangerous consequences. In response to question 14 of the Review on certain issues of judicial practice related to the application of legislation and measures to counter the spread of a new coronavirus infection (COVID-19) No. 2 in the Russian Federation, approved by the Presidium of the Supreme Court of the Russian Federation on April 30, 2020 [4], it is stated that that criminal liability for violation of sanitary and epidemiological rules that created the threat of such consequences can only occur if this threat is real, when mass illness or poisoning of people did not occur only as a result of timely decisions taken by state authorities, local self-government, medical workers and other persons measures aimed at preventing the spread of disease (poisoning), or as a result of other circumstances beyond the will of the person who violated these rules.

Thus, in order to qualify an act as a violation of sanitary and epidemiological rules, which negligently entailed the creation of a threat of mass disease or poisoning of people, a necessary condition is the reality of the onset of such consequences that could have occurred, but did not occur due to circumstances beyond the control of the person.
For a clearer understanding of the establishment of these signs of the objective side of the crime, let us turn to judicial practice.
So, in the verdict of the Preobrazhensky District Court of Moscow dated 08/06/2021 in the case of L [15]. the court substantiates the reality of the threat of a mass disease, and specifically a new coronavirus infection, firstly, by listing specific violations of sanitary and epidemiological rules: they did not observe social distance, did not wear masks and gloves. Secondly, the court assesses the criterion of the mass nature of the disease, indicating that these actions created a real threat of a mass disease of people, both those who were present at the places where unauthorized rallies were held, and other persons who could contact them in the future. The court also cited the circumstances that made it possible to avoid a mass illness of people, namely, the coordinated actions of law enforcement officers who prevented close contact of the citizens present with each other, additional explanatory work carried out both directly during the uncoordinated public mass event (rally), and in the preceding event days in the media.
Thus, Part 1 of Art. 236 of the Criminal Code of the Russian Federation contains an alternative crime with several consequences. At the same time, the social danger of the described consequences does not seem to be identical. It is obvious that an act that caused a mass illness or poisoning of people has a greater public danger than creating a threat of such consequences. According to the principle of justice, contained in Article 6 of the Criminal Code of the Russian Federation, punishments and other measures of a criminal law nature must be fair, including corresponding to the degree of public danger of the act. According to Yu.S. Norvartyan, the differentiation of responsibility in the event of causing real consequences and creating a threat of such consequences is possible by dividing the alternative corpus delicti into two parts, one of which provides for liability in the event of real consequences, and the second - in the event of a threat.
Article 236 of the Criminal Code of the Russian Federation does not contain special features of the subject, which allows us to state the existence of a common subject of the crime. However, some researchers dispute this view. For example, O.S. Kapinus believes that in this corpus delicti the subject is special, meaning by such a person obliged to comply with the rules established to combat the spread of mass diseases or the poisoning of people. For example, employees of catering establishments, sanitary and epidemiological stations, medical institutions, and so on [16].
It is impossible to agree with this point of view, because. Article 10 of the Federal Law of March 30, 1999 No. 52-FZ “On the sanitary and epidemiological well-being of the population” [8] recognizes the obligation of citizens to comply with the requirements of sanitary legislation, as well as not to take actions that entail a violation of the rights of other citizens to protection health and favorable environment. Consequently, compliance with sanitary and epidemiological rules is entrusted not only to officials, but to all citizens of the Russian Federation. Consequently, any person may be held liable under Article 236 of the Criminal Code of the Russian Federation. Thus, the subject of the considered corpus delicti is general.

The subjective side of the analyzed composition is characterized by a careless form of guilt in terms of the onset of real consequences, and in turn, a violation of sanitary and epidemiological rules can be both intentional and careless. At the same time, the attitude of a person to the very violation of sanitary and epidemiological rules has no legal significance [13].
The studied composition as a whole is characterized by a careless form of guilt in relation to the consequences of the crime. However, it should be noted that a careless form of guilt is provided only in relation to the onset of real consequences - a mass disease and (or) poisoning of people. This conclusion follows from the formulation of the criminal law norm used by the legislator. So, in Art. 236 of the Criminal Code of the Russian Federation states: “negligently entailed a mass disease and (or) poisoning of people and created a threat of such consequences.” Thus, the attitude towards the creation of a threat of the onset of consequences can be expressed both in the form of indirect intent, and in the form of frivolity or negligence. At the same time, the creation of a threat of the onset of consequences cannot be committed with direct intent, otherwise the qualification of the act under Part 1 of Article 236 of the Criminal Code of the Russian Federation is excluded.