Certainty of the criminal law and law enforcement

The article examines how the certainty of criminal law norms affects lawmaking and law enforcement in contemporary Russia. The subject of the research is the legal certainty of Russian criminal law and the ways to minimize inevitable legal uncertainty at both the legislative and law-enforcement stages. The authors start from the premise that uncertainty of criminal norms is objectively unavoidable, but excessive vagueness in wording and practice leads to arbitrary and unjustified application of criminal law with tragic consequences for individuals and for the state.

The core hypothesis is that the goal of criminal policy should be not the elimination, but the rational minimization of legal uncertainty, and that this requires coordinated changes in legislation, interpretative practice, and judicial approaches to corruption and organized crime.

Methodologically, the authors employ doctrinal legal analysis of constitutional and criminal legislation, case law of the Constitutional Court and ordinary courts, comparative study of the legislation of Belarus and Georgia, as well as a criminological assessment of statistical data on convictions under new provisions of the Criminal Code adopted in connection with the Special Military Operation. They also use elements of legal forecasting and criminological expertise to evaluate the predictive quality of criminal-law novelties. The main results show, first, that many new SVO-related criminal provisions are either not applied at all or are applied sporadically, which reveals low prognostic quality of lawmaking and three typical defects of legislative technique: legal uncertainty, excessive certainty, and fictitious certainty (for example, in norms with administrative pre-judication, norms requiring only direct intent, or multi-part provisions that are de facto unenforced). Second, the analysis of Article 210¹ on occupying a higher position in the criminal hierarchy demonstrates that the absence of legal definitions and special legislation leads to selective enforcement focused on “thieves in law”, while leaders of other criminal communities remain beyond the scope of this norm. Third, the authors highlight a “corruption-friendly” sentencing practice, where courts routinely recognize positive service characteristics, awards, and social status of corrupt officials as mitigating circumstances, thereby undermining public trust and weakening general prevention.

In conclusion, the article argues for: adoption of a Federal Law on normative legal acts based on the Belarusian model; a systematic revision of criminal-law provisions to remove defects that generate uncertainty; adoption of a Federal Law on combating organized crime that would legally define forms of criminal leadership; and a revision of anti-corruption criminal policy to exclude the use of honorary awards and positive performance evaluations as mitigating circumstances for corruption offences. These measures, in the authors’ view, would significantly reduce unjustified legal uncertainty and strengthen the effectiveness and legitimacy of criminal law enforcement in Russia.

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