Public Danger of an Act as a Basis for Criminalization (Decriminalization)

Abstract

The material foundation of criminal policy is the criminal law policy, the implementation of which is unthinkable without the use of such targeted means of influencing public relations (tools) as criminalization and decriminalization. At the same time, amendments to the criminal law that expand its scope are often criticized by the scientific community, pointing to the scientific inconsistency, spontaneity and inconsistency of changes in the criminal law.

The article analyzes the interdependence of the public danger of acts and criminalization (decriminalization), expresses the point of view that the only basis for criminalization should be singled out – the presence of an act that is not under a criminal ban, but causes (capable of causing) significant harm to public relations. Other grounds identified in the doctrine, including the impossibility of resolving the situation without changes in the criminal law, taking into account the possibilities of criminal justice, the availability of socio-economic resources are not really such, however, these factors must be taken into account. Separately, such a property of the crime as mass character (prevalence) is considered, it is pointed out that prevalence is not an independent basis for criminalization, is of a secondary nature and can be recognized as a condition (factor) of criminalization.

It is argued that it is unacceptable to identify the principles and grounds of criminalization (decriminalization). The latter should correlate with the principles of criminal policy (legality, justice, democracy, humanity, economy of measures of criminal repression; scientific and social validity and expediency).

It is indicated that there is only one reason for decriminalization – the loss of public danger of an act previously recognized as a crime. Specifying as independent grounds for decriminalization such circumstances as a serious change in political and economic relations in the country or the possibility of combating undesirable forms of behavior by other, milder (and possibly more effective) means than criminal punishment is considered incorrect due to the fact that these changes without a significant reduction in public danger cannot be considered sufficient for decriminalization.