Criminal Legal Measures of Fight against Crime in Russian and

German Criminal Law

Sargis Artemovich Terzikyan

and Natalya Yuryevna Prikhodko

Research center “Russian law”, Law Faculty, University of Potsdam

Department of Management Training of Law Enforcement Agencies, Branch of the Academy of Management of the

Ministry of Internal Affairs of the Russian Federation, Bolshevo

Keywords: Additional criminal law, criminal legal measures, counteraction, impact, warning, sanction

Abstract: This paper presents the systems of Russian and German criminal-legal counteraction, provided for by national

legislation and international law. The objective set for the researchers: to consider the theoretical aspects of

combating crimes in Russia and Germany, analyzing the obtained material, generalizing, joining and

synthesizing the results of study separate elements, the authors tried to formulate similar and distinctive

features of two legal systems. The author's paper is interesting for science as a whole and for a private

researcher because he offers for the first time to compare the criminal legislation of the Federal Republic of

Germany and Russia within the framework of combating crime.

1 INTRODUCTION

Before presenting specific measures of criminal law

in the fight against crime, it is necessary to understand

the criminal legislation system in Germany and

Russia as a whole aimed at combating crime in

Russian and German criminal law, which is the study

goal and is being developed for the first time. In this

part of the cooperative paper, the system of German

and Russian criminal law will be briefly presented.

The study object is the rules of Russian and German

international legislation. Along with this, the sanction

system and its features in German criminal law in the

context of combating crime will be highlighted, two

types of German criminal law – criminal and

administrative, and some categories and terminology

of the general part of Russian criminal law, such as

the concept of preventing crimes or legal torts,

suppression as a counteraction element, some

elements and content of criminal law, legislation and

criminal policy, will be considered.

2 MATERIALS AND METHODS

The study used the sources of scientific developments

and materials of practical activities of law

https://orcid.org/0000-0003-3037-9624

enforcement agencies in Russia and Germany; the

study used a number of methods, reflecting the

comprehensive solution of the problems set in the

article: analysis and synthesis, comparison method,

method of data processing and interpretation.

3 RESULTS AND DISCUSSION

Studies in the field of legal knowledge, including

criminal law, require a response from the scientific

world in the narration of theoretical aspects and

proposals in solving practical problems facing society

in a particular historical period of its development.

The study of crime in its various aspects, including

with the help of transition to higher levels of

knowledge to a systemic study of measures to counter

crime, including in the conditions of functioning of a

modern legal state, is of primary importance.

Let us consider an overview of the German

criminal law system: German criminal law widely

consists of criminal law and the law of administrative

offenses. Each of these branches of law sets forth its

own components of act and the conditions for

punishment assignment. The main characteristic

features are the legal consequences and opportunities

for the prosecution of wrongful acts (Hellmann,

Terzikyan, S. and Prikhodko, N.

Criminal Legal Measures of Fight against Crime in Russian and German Criminal Law.

DOI: 10.5220/0010636400003152

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

329-334

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

329

2021). An important feature of German criminal law

is that criminal law rules are found not only in the

Criminal Code of the Federal Republic of Germany,

but also in legislative acts regulating other legal

branches. In this connection, the components of a

criminal act of tax evasion are established in the Tax

Code of the Federal Republic of Germany (§ 370 of

the Tax Code). Provisions of a criminal law nature

that regulate civil or administrative legal relations can

also be found in other regulatory legal acts. Thus, the

provisions of the Criminal Code define the main area

of substantive criminal law, while the rules of the

criminal nature of other laws constitute an additional

part of the criminal law. Thus, in German criminal

law it is conventional to distinguish between “basic”

and “additional” criminal law (Schönke, 2019). It

should be pointed out that most of the “traditional”

criminal offenses are contained in the Criminal Code,

for example, murder, theft, fraud, robbery, extortion,

infliction of bodily harm. Additional criminal law

regulates special areas of the necessary criminal law

impact, for example, tort related to psychotropic

drugs or business and financial activities (JuS, 2019,

NZWiSt, 2021). Although the term “additional

criminal law” is used, this does not mean that this part

of the criminal law is in some way or other secondary

to the Criminal Code. This designation is used to

categorize a formal-meaningful nature. Additional

criminal law often regulates misdemeanors and

crimes that are also of great importance in practical

work (Kindhäuser, 2017). Despite the fact that this

part of criminal law is influenced by social changes,

its main and most important features are that it

includes a list of rules that are taken for granted in

legal systems that guarantee subjective rights. The

presence of necessary connection with protection of

legal benefits in these cases practically does not cause

problems (Esser, 2020). The task of additional

criminal law – to put the previous special-branch

legal rules under criminal law protection. The

controversial form of blanket rules is a frequently

used technique for resolving such legal relations.

Along with international commitments incriminal

law (due to ratification, for example, of statute of the

International Criminal Court or the International

Convention for the Protection of Human Rights and

Fundamental Freedoms), the law of the European

Union (EU) has a great influence on German criminal

law. In accordance with normal legislative procedure,

the European Parliament and the Council may,

through the adoption of decrees and directives,

establish minimum rules for the establishment of

crimes and punishments in areas of particularly

serious crime that are of a cross-boundary nature, as

well as because of the nature or consequences of

criminal acts, or because of a special need to require

joint action against them (Art. 83, sub-paragraph 1, of

the Treaty on the Functioning of the European

Union). Terrorism, human trafficking, sexual abuse

of women and children, illegal drug and arms trade,

money laundering, corruption, organized crime and

computer crime are identified as such spheres. With

the entry into force of the Lisbon Treaty (Vertrag von

Lissabon, 2009), the EU gained additional

opportunities to influence the criminal legislation of

the member states. Thus, the EU strives to ensure a

high security level through the adoption of measures

to prevent and combat crime, as well as to combat

racism and xenophobia, coordination and cooperation

of police departments and bodies administering

criminal justice, including through the mutual

recognition of criminal decisions and, if necessary,

approximation of criminal law (Art. 61, sub-

paragraph 3 of the Lisbon Treaty). If the

approximation of the criminal law of the Member

States is particularly necessary for the effective

implementation of the Union's policy in the area in

which harmonization measures have been taken,

appropriate directives establishing minimum rules for

the determination of criminal acts and punishments in

the relevant area may be adopted (Art. 69b, sub-

paragraph 2 Lisbon Treaty). Thus, for example,

Directives were issued to combat money laundering,

to prevent and combat trafficking in persons and to

provide protection to victims, as well as on the

implementation of preliminary investigation in

criminal cases (Richtlinie 2018/1673/EU, Richtlinie

2011/36/EU, Richtlinie 2014/41/EU). In addition,

according to Art. 83, sub-paragraph 3 of the Treaty on

the Functioning of the European Union in the

Development of Crime, the Council may, with the

consent of the European Parliament, unanimously

determine other areas of crime that meet the criteria

of this sub-paragraph.

The German Administrative Offenses Act

establishes an administrative monetary penalty as a

means of influence.

The Criminal Code provides for punishment in the

form of a monetary penalty and imprisonment as an

ultima ratio of criminal pressure. In this sense, it

should be noted that the sanctions system of the

Criminal Code of the Federal Republic of Germany

distinguishes between punishments (§ 38 et seq.

paragraphs) on the one hand, and remedial and

security measures (§ 61 et seq. paragraphs) on the

other hand. Therefore, when talking about the

sanctions system in Germany, the concept of legal

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effect dualism is used (Münchener Kommentar zum,

2020).

The theoretical concept establishes a categorical

division of punishments: 1) justified by the law

breaker's fault and being a limited state mechanism

for inflicting harm in the sense of a repressive

response to the committed injustice, or 2)

independent of the perpetrator's guilt, measures to

correct and improve security, which are justified by

the (expected) future threat posed by the performer

and are a proportionate limited response of the state

in order to provide preventive protection (see.

BVerfG 4.5.2011 – 2 BvR 2365/09) (Müller-Dietz,

1979). According to the law concept, remedial and

security measures (§ 61 et seq. paragraphs of this

chapter of the Criminal Code) are the so-called

second way of the system of criminal sanctions and

serve to prevent future danger posed by such actual

doers whose predicted danger potential as a result of

imposing a custodial sanction or a monetary penalty

in the context of preventive protection of legal

benefits cannot be reflected in whole or sufficiently

(Münchener Kommentar zum, 2020).

Remedial and safety measures include, for

example, psychiatric detention, supervision of

behavior, prohibition to engage in certain activities,

etc. (see § 63 et seq. paragraphs of this chapter of the

Criminal Code).

German criminal law also distinguishes between

basic and additional types of punishment (BVerfGE

128, 326 (376)) (Jung, 2002). However, as an

additional punishment in the Criminal Code, only the

prohibition of operating the vehicle (§ 61 of the

Criminal Code) applies, since the property

punishment was found by the Federal Constitutional

Court (FCC) of the Federal Republic of Germany to

be inconsistent with the Basic Law, and, therefore,

became invalid (see BVerfG – BvR 794/95). Along

with this, a law came into force in 2017 reforming the

sphere of criminal forfeiture of property and objects

obtained as a result of a crime or intended to commit

wrongful acts (Bundesgesetzblatt (BGBl.) I 2017,

872). This institution enables law enforcement

authorities, among other things, to confiscate the

property of unexplained wealth (§ 76a, sub-paragraph

4 of the Criminal Code). As a result of these changes,

the need in the judicial establishment of the

committed wrongful act and the performer's guilt

absent. For the purpose of property confiscation, an

initial suspicion of committing one of the criminal

acts defined in § 76a (sub-paragraph 4, sentence 3) of

the Criminal Code and the conviction of the court of

a gross discrepancy between object value and legal

income of the affected party is sufficient (§ 437 of the

Criminal Procedure Code) (Terzikyan, 2019,

Köllner/Mück, 2017). Thus, the legislator tried to

ensure the principle operation that crimes should not

compensate for themselves (Reitemeier, 2017). The

FCC describes the goal of the criminal-legal

confiscation of property as follows: “If law-breakers

could keep property benefits acquired by criminal

means for a long time, this could harm the population

confidence in fairness and inviolability of law and

order” (BVerfG Beschl. v. 14.1.2004 – 2 BvR 564/95

– BVerfGE 110, 1-33, Rn. 103). It should be pointed

out that the need to make these changes is due to the

fight against organized crime and was a requirement

of the European Union Directive dated April 03, 2014

(2014/42/EU) “On securing and confiscating the

objects of the act and what was acquired by criminal

ways” (Heim, 2017). In German criminal law,

provisions related to confiscation are defined as

coercive actions of their own nature (§ 11, item 8 of

the Criminal Code) (Schönke, 2019, Kindhäuser,

2017). In this context, in the literature and in judicial

practice, discussions about the essence of these

measures, which have a repressive nature similar to

punishment, have been and are being conducted

(Bittmann, 2016, Höft).

The logic of scientific research development in

Russia and the practical tasks put forward in carrying

out daily activities on criminal counteraction to crime

as a whole, set the goals of a more detailed and

multilateral study of its individual measures in the

mechanism of criminal fight against crime, the search

for best means of its prevention measures. It is

necessary to point out that research or scientific

thought requires its confirmation by practical data,

including at the international level (Kucher O., 2015).

All conducted research is suggestively aimed at

improving legislation, thereby increasing the

effectiveness of combating crime. In this case, we

cannot but agree with the scientists' opinion about

digitalization of the law enforcement environment,

which can lead to streamlining and simplifying the

interaction of “citizen-society”, “citizen-state”

(Nikitin Ye., 2020, Tagirov Z.I., 2018).

Understanding the mechanism of counteraction in the

criminal sphere includes all the teachings, institutions

and components of criminal law as a scientific

research. Such as, the structure of provision for law,

objective and subjective signs of a crime, crime as a

legal fact and much more.

It is also required to consider cumulative,

interdisciplinary, generalizing and integrative studies,

since it is they that allow the most general and

complete consideration of all of the above institutions

and categories in the process of interaction, contact,

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interchangeability. However, all the shortcomings are

visible here: erroneousness and misleadings of

scientific views, violations of law enforcement, rules

conflict, failure to function in the system of

criminalization or decriminalization, loss of a

methodological understanding of combating crime.

In the Russian scientific literature, an integrated

approach is used in the research of any field of study,

the maximum number of published works is covered.

This is of great importance for moving forward in the

field of interaction in the law enforcement

environment, it allows to rationally use the obtained

information, to tried out it, to justify the rationality of

using one or another of its components.

For example, Lopashenko N.A. defines the

criminal law impact – this influence is generally

positive, since it supposes a focus on the prevention

of harm – crime It includes various methods,

measures, including the most severe, that the state and

society can afford (Lopashenko N.A., 2016).

The criminal measures of counteraction, which

are considered by the authors, can be attributed to the

main methods of influencing criminal behavior, as

methods of restraining persons from crimes. The

study and development of criminal countermeasures

should be continuous, associated with the

development of statehood, society, technology. This

correlates with the principles of criminal legislation,

the severity of criminal law, unlawful behavior of a

person (individual person), the severity of crime.

Criminal law guards, protects and preserves what is

not questioned.

The system of general measures of criminal

counteraction to crime, as fundamental elements that

accumulate in themselves the concepts of the criminal

and the punishable and everything connected with

them, includes:

 criminal law;

 criminal legislation;

 criminal policy.

First, criminal law includes the protection of

public relations in society and the state from crimes;

carries out the function of crime prevention, including

the element of prevention of repeated administrative

violations. Protects the individual, society and the

state, property and state structure. Criminal law

formulates not only repressive methods of managing

society, but also offers conditions and grounds for

attenuating, liberating, eliminating responsibility and

punishment. It is known that the criminal law subject

is made up of three main types of social relations, the

content of which is very specific and ambiguous.

Secondly, the proposed system of criminal law

counteraction is based on a complicated mechanism

of the impact of criminal law rules (legislation) on

crime, this effect is partially intermediated, and has

an exceptional preventive effect, but most of it acts

directly and proximately. The system of general

measures can be structured in the following scheme:

from general to specific: criminal law policy →

criminal law → criminal legislation. However, it

should be said that the first two elements can change,

depending on the breadth of objective properties.

The term “opposition” is defined by legislative

regulations as an action that prevents another action

or an action that serves as an obstacle to the

manifestation, development of another action,

opposition.

The concept under consideration is directly used

in some regulatory legal acts of federal significance,

namely:

1) The Federal Law dated December 25, 2008 No.

273-FZ “On Combating Corruption” in Art. 1 gives

the concept of combating corruption as an activity

...a) to prevent ..., identify ..., eliminate the causes of

crime, summarizing these terms in the concept of

“prevention”; b) on detection, prevention,

suppression, disclosure and investigation,

considering everything as a “fight”; c) to minimize...,

liquidate.

2) The Federal Law dated August 07, 2001 No.

115-FZ “On Counteracting the Legalization

(Laundering) of Criminally Obtained Incomes and

the Financing of Terrorism” in Art. 4 refers to the

measures aimed at countering the legalization of

income... the following: various types of control;

prohibition on informing clients..., refusal to fulfill

the order; other measures, referring to other

regulatory documents.

3) The Federal Law dated March 06, 2006 No. 35-

FZ “On Countering Terrorism” uses the following

concept in Art. 3 countering terrorism as: a)

prevention ..., identification, ...elimination of causes

and conditions...; b) detection, prevention,

suppression, disclosure and investigation of crimes;

c) minimization, elimination of crime consequences.

However, as can be noted, opposition at the

legislative level is defined as warning, suppression,

fight, and in some cases, disclosure and investigation.

Art. 6 “Main Directions of Crime Prevention” (the

Federal Law dated June 23, 2016 No. 182-FZ “On the

Fundamentals of the Crime Prevention System in the

Russian Federation”). 16 positions are indicated as

the main directions of activity. All these 16 positions

are grouped into four blocks: directions that are

implemented through “preventions”, directions that

are implemented through “provision”, directions that

are implemented through “counteraction”, and others.

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The term “warning” is used when it comes to

delinquency (item 1.2 of Art. 6), neglect,

homelessness, delinquency and antisocial actions of

minors, as well as when referring to natural and man-

made emergencies.

The term “provision” is used in relation to such

areas of activity as ensuring public safety, including

traffic safety and transport security, ensuring the

protection and protection of private, state, municipal

and other forms of ownership, ensuring economic

security, ensuring environmental safety, protection

environment, fire safety.

The term “counteraction” is used in relation to

illegal migration, terrorism and extremist activities,

illegal drug trafficking, corruption. Four positions of

Art. 6 of the Federal Law dated June 23, 2016 No.

182-FZ - the protection of the individual, society and

the state, the development of a preventive accounting

system, the protection of public order, an increase in

the level of legal literacy and the development of the

legal consciousness of citizens - reveal the term

“prevention” more broadly than the concepts

“warning”, “provision”, “counteraction”.

The criminal legislation of Russia, reflected in the

Criminal Code of the Russian Federation, is thus a

systematized and codified criminal legislation that

includes the entire set of mandatory and

comprehensive criminal law norms in force in Russia.

The Criminal Code of the Russian Federation is the

only source of criminal law, all other regulatory legal

acts of the state, decisions of the Constitutional Court

of the Russian Federation, the Supreme Court of the

Russian Federation, other judicial bodies, orders of

the Prosecutor General’s Office of the Russian

Federation, other law enforcement and law

enforcement agencies, constituent entities of the

Russian Federation are only orienting, auxiliary, and

explanatory and cannot be a source of criminal

legislation.

Thirdly, criminal policy – the state activity on

civil society and state safety management against

criminal encroachments, development and carrying

out a common line in this, strategy and tactics.

Criminal policy is an integral part of the state

internal policy and differs from its other spheres in its

object, objectives, methods and measures. Its content

depends on socio-political and socio-economic

conditions. With a change in these conditions, the

content of criminal policy as a part of domestic policy

also changes.

Scientific analysis, scientific sensemaking of this

activity, determination of its goals and objectives,

content and forms, directions, its measures and

methods, the formation of provisions related to the

management of criminal policy implementation,

constitute the theoretical basis for its formation and

development. That is, the development of problems

of the state's activities in the management of fight

against crime, its implementation is the main

direction of the criminal policy theory.

The subject of any branch of knowledge

determines the limits in which scientific

understanding of one or another aspect of reality takes

place. The criminal policy subject is the main general

laws of the state's activities to ensure the security of

society, the state from criminal encroachments. The

criminal policy purpose as a state strategic line is the

safety of citizens, society and the state from criminal

encroachments; the subjects of criminal policy are

state and public structures that participate in it.

State policy in the field of fight against crime – an

activity that uses various economic, political, legal,

religious, cultural, educational, etc. measures and

methods. Criminal policy – as one of its elements, an

integral part of legal policy. This is an activity to

ensure security from criminal encroachments, based

on the use of criminal law, procedural, criminal

executive and other means used in this.

It is obvious that criminal policy is closely related

to legal policy and is a part of it. Alongside with that,

criminal policy is a relatively independent link, which

is determined by its goals, objectives, principles, and

measures.

4 CONCLUSIONS

The authors found in the paper that the European

Union can issue directives for approximation of the

criminal legislation of the Member States,

respectively, and Germany, if this is necessary for the

effective implementation of the Union policy in the

area in which harmonization measures have been

taken, including establishing minimum rules for

definitions of criminal offenses and punishments in

the relevant field. The proposed system of criminal

legal counteraction in Russian legislation is based on

a complicated mechanism of the criminal law impact

on crime, this effect is partially intermediated, and

has an exceptional preventive effect, but most of it

acts directly and proximately. These conclusions are

not conclusive and give a handle for continuing

research in this area, for discussion and rethinking of

erroneous assumptions and a search for a way out of

scientific misleadings.

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ACKNOWLEDGEMENTS

We sincerely thank the organizers of the VII

International Scientific and Practical Conference

“Criminal Law and Operational-Investigative

Activity: Problems of Legislation, Science and

Practice” - Research Institute of the Federal

Penitentiary Service of Russia represented by

Gennady Sergeevich Shkabin, Chief Scientific

employee of the Center for Research on Security

Problems in Penitentiary Institutions, for the

opportunity to take part in such an important

scientific event, we look forward to further

cooperation and joint creative work.

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