CURRENT ISSUE

After a few years of intense preparatory work, riddled with controversy and conducted amidst political and social turbulence, Russia adopted its first, post-communist criminal code. [FN1] The adoption of the code is supposed to be an important step towards fundamental overhauling of the Russian legal system in general and its penal system in particular. [FN2] The code became effective January 1, 1997, i.e., on the same day as the 1996 statute on the Courts System of the Russian Federation. [FN3] Both were closely followed by the new correctional code signed into the law by President Yeltsin on January 8, 1997. [FN4] Another crucial legislative act dealing with the criminal process--the new code of criminal procedure, is still pending before the Russian *376 Parliament. Its adoption is expected in 1999. [FN5] The new Russian criminal code deserves close attention and study by the Western legal community for several reasons: it is widely known that contemporary Russia is engulfed by a high tide of common criminality and official corruption [FN6] which presents a serious threat to her political stability and tends to retard, if not arrest, her progress towards democracy and the rule of law. Numerous Russia-based criminal organizations reach far beyond its territory and present a menace to many foreign countries including several nations of Western Europe and the United States. [FN7] The quality of substantive criminal law, while being only one of many factors in Russia's "war on crime," under the circumstances, obviously deserves our close attention. Moreover, the new code represents a major effort at discarding a lawless and repressive Soviet legacy and joining the mainstream of progressive penological cultures. Thus, the new Russian criminal code should be studied from the perspective of sound penal policy as well as the perspective of its compatibility with the requirements of the rule of law and protection of basic human rights. At the same time one should realize that the study of the new code, especially at the early stages of its operation, will give us only limited knowledge about the realities of criminal justice in contemporary Russia. We can learn quite a lot from the code about the aspirational, the exhortative, and the normative aspects of substantive criminal law, but next to nothing about its functioning in practice. Such a note of caution, which would be in order with respect to a new codification in any country, is of special relevance to contemporary Russia where the correspondence between normative promises on one hand and operational reality on the other is extremely loose and at many crucial points plainly non- existent.
 

*377 The study of the new criminal code is greatly facilitated by the volume under review. [FN8] Professor Anatolii V. Naumov, a leading Russian academic authority on criminal law, has written an important, comprehensive and informative textbook based on the new code. The substantive core of the book consists of a presentation of general principles and doctrines of the contemporary Russian penal law. [FN9] Within this broad subject area one can discern three major topical segments devoted to: 1) structure, interpretation and operation of criminal legislation; [FN10] 2) a concept of crime, its constituent elements and basic doctrines of criminal responsibility (such as inchoate crimes, complicity, substantive criminal law defenses); [FN11] and, 3) criminal punishment. [FN12]
 

Although most of the text, understandably, is devoted to an exposition and analysis of the new code, the book represents more than an extensive commentary to its provisions. A good many pages are devoted to the history of Russian criminal legislation as well as the history of penological thought in Russia and abroad. [FN13] In a separate chapter, Naumov surveys relevant doctrines of major contemporary *378 penal systems: including, among other jurisdictions, England, France, Germany, Italy, Japan and the United States. [FN14]
 

Professor Naumov's effort to put the new Russian criminal code in a historical and comparative perspective should be applauded as particularly pertinent at this time. The country's old social, political and economic systems and it corresponding ideology collapsed quite recently. Russia strives for a deep transformation by building a society based on private property, market economy, political pluralism and the rule of law. These fundamental changes--Naumov asserts--rendered the old Russian/Soviet criminal code of 1960, in spite of numerous amendments, hopelessly obsolete. The new code is, allegedly, qualitatively different since it makes a definite break with the communist past; it rejects the value system on which its predecessor was based. First of all, it rejects the priority of governmental interests over the interests of the individual. The axiology of the new code puts interests of the individual, above all his life, liberty and autonomy, at the top of the hierarchy of values. Consequently, the new code is pervaded by the ideology of human rights and makes their protection its central concern. Naumov points out how this value reorientation is reflected in the code's structure and its particular provisions. Thus, the new code articulates as its fundamental predicates several "principles", namely legality, equality of citizens before law, culpability, justice and humanitarianism (arts. 3-7). [FN15] The structure of the special part of the code is also indicative of the new axiology--crimes against the individual are put on the top of the list, while crimes against the state authority are given lower priority. Thus, the hierarchy of interests protected by criminal legislation of the communist era has been reversed. [FN16] One might add that this new value orientation is also reflected in statutory sanctions, for example, even the gravest crimes against state authority, such as high treason, espionage *379 or violent overthrow of the government, under the new code are non-capital offenses. [FN17]
 

Naumov views criminal legislation of the Soviet era with a very critical eye as one of the instrumentalities of unjust repression trampling upon basic human rights. Some of the major targets of his criticism are infamous provisions criminalizing anti-Soviet agitation and propaganda, various religious activities as well as leading a "parasitic way of life." [FN18] Given the author's well justified, sharply critical opinion about Soviet criminal law, however, one is somewhat puzzled by his high regard for some of its chief operators, particularly for the Supreme Court of the USSR. [FN19]
 

Naumov suggests that pre-revolutionary Russian criminal law, at least from the time of the judicial reforms of the 1860's, was a part and parcel of enlightened and progressive continental European legal culture. [FN20] This line of progressive development was brutally interrupted by victorious Bolsheviks. Naumov seems to suggest that the Soviet period should be perceived as a monstrous deviation in the Russian legal history. After a meltdown of the communist regime, Russian criminal law is--we are to believe--returning to its true roots and reclaiming its membership in the community of civilized systems. In other words, after a long and tragic detour, Russian law is "coming home"--back to its continental European cradle. The new criminal code is supposed to represent a major step in this direction. [FN21]
 

To what extent does the code, particularly its General Part, fulfill these hopes and aspirations? To what extent does it measure up to *380 the standards of modern codifications of Western European vintage? How successful were its draftsmen in overcoming the now strongly disapproved legacy of the Soviet past? Particularly, to what extent has the code managed to eradicate overbreadth, vagueness as well as excessive severity, some of the outstanding characteristics of Soviet penal law?
 

Needless to say, even partial answers to these questions would exceed the narrow limits of a book review. In my opinion, undertaking an extensive study pursuing broad questions of the kind would be a worthwhile project. It is my impression, however, that the code falls short of such expectations and some of the reasons are quite transparent. It was prepared in a relatively short time, in a hasty manner, amidst political conflicts and social upheavals. As a German commentator observed, many of the code solutions were arrived at by way of political compromise rather than on their merits. [FN22] Many of these have not been thought through, while some important issues have been simply ignored. Under the circumstances it is not surprising that even before the code became effective, a debate erupted about the need to amend it. [FN23] More recently, amendments to the code approved by the Russian Parliament were rejected by President Yeltsin. Thus the adoption of the code, as it was aptly observed, failed to bring stability to Russian criminal law. [FN24]
 

One of the reasons why the new Russian code deviates significantly from its modern European counterparts [FN25] is the experience of intellectual isolation of the country's legal community under the Soviet regime. The task assigned to Soviet legal academia was not so much to study and analyze Western legal developments, but rather to denounce them and demonstrate their reactionary essence. Naumov quite justifiably complains about cultural isolation from the West in which Soviet lawyers had to labor for many years. [FN26]
 

These years of estrangement are even now taking their toll after the political barriers were razed. It appears that even top level Russian experts, such as Professor Naumov himself, do not share in some basic analytical concepts and methods which have become widely accepted in countries of the West. A case in point is a "structured" approach to crime analysis. According to this approach, criminal responsibility may not be found unless an actor's conduct meets the following three sequentially examined requirements: 1) it must include all of the elements of statutory crime definition; 2) it must be unlawful from the perspective of the legal system as a whole and; 3) it must have been committed culpably, that is to say, in a personally *381 blameworthy manner. An essential corollary of the "structured" approach to the crime analysis is a basic distinction between justifications, that is circumstances negating objective unlawfulness of the conduct, and excuses, which negate only culpability of an actor. In short, justifications make otherwise forbidden conduct legally correct, while excuses make it merely forgivable, but still unlawful. This conceptual distinction, adopted by penal theory and practice in many countries [FN27] is all but ignored in the book under review; [FN28] and, there are reasons to believe, was not recognized by the code's draftsmen as well.
 

The structured approach to crime analysis, and corresponding conceptual distinctions, are significant not only in drafting, but also in the process of interpretation and application of law. A good illustration on this point is provided by Naumov's approach to the defense of superior orders. Art. 42 of the code, entitled, "Execution of an Order or Instruction," reads,

1. There shall not be deemed to be a crime the causing of harm to the interests protected by the criminal law by a person acting in execution of an order or instruction that are obligatory to him. The criminal responsibility for causing such harm shall be born by the person who has given the unlawful order or instruction.

2. A person who has committed an intentional crime in execution of knowingly unlawful order or instruction shall bear criminal responsibility on the general grounds. The non-execution of a knowingly unlawful order or instruction shall exclude criminal responsibility.

*382 The provision grants very broad immunity to individuals carrying out unlawful orders or regulations within any hierarchial governmental structure whether military or civilian. [FN29] The code does not distinguish between facially lawful and manifestly unlawful orders, extending the immunity to both. It is difficult to imagine a more misguided provision for a country whose government has been and continues to be notorious for its lawless behavior. [FN30] Still, broad immunity unwisely granted by art. 42 is susceptible to at least two possible interpretations: First, it can be argued that the executor of an unlawful order unaware of its illegality should be free from responsibility because he may not be personally blamed for obeying his superior. In other words, the executor's action, while objectively unlawful, remains free from sanction as forgivable. Under this interpretation, a victim of governmental encroachment at least preserves his right of self-defense. Second, an alternative interpretation would have it that an unlawful order makes conduct of the executor justified, hence lawful. In effect, victims of official lawlessness would be denied their right of self-defense.
 

Since the basic distinction between justification and excuse is all but ignored in the book, the author never even considers the two possible theories of immunity under art. 42. Instead, Naumov, without discussion, seems to subscribe to a conclusion that government agent who carries out an order unbeknownst to him unlawful--acts himself in a lawful manner. [FN31] Such interpretation, by no means compelled by the language of art. 42, makes a bad situation even worse. [FN32]
 

*383 Another crucial point at which Russian penal theory deviates from the ideas dominant in the West is concerning the crucial concept of culpability. Naumov and his colleagues still adhere to a narrow concept of culpability, identifying it as a "mental element" of crime in the "form" of intent or negligence. [FN33] This concept, consistent with the standard Soviet approach, and known as the "psychological theory" of culpability, was long ago discarded by the penal theory dominant in Western Europe as analytically deficient and, more importantly, as unfair to the defendant. It is now widely recognized that culpability is not reducible merely to psychological "facts"; instead its essence resides in personally blameworthy decision of an actor who breached the duty to obey the law under the circumstances when law abiding conduct could be fairly expected and required of him (the normative theory of culpability). [FN34] Accordingly, not every intent to engage in forbidden conduct justifies a finding of culpability, it must be intent formed under normal motivational situation. By the same token, intent formed in an abnormal motivational circumstances, such for example, as duress or unavoidable mistake regarding legal prohibition should not be equated with culpability since the actor's failure to comply with law is not blameworthy. [FN35] By broadening the inquiry, the normative theory forces the law maker as well as the law interpreter to confront certain important issues, like mistake of law or duress, as an integral part of inquiry into actor's culpability, whereas the psychological theory makes it much easier either to ignore such issues or to approach them as separate, free standing policy questions.
 

These, and perhaps other differences in the theoretical concepts and approaches, are responsible for several peculiarities of the new Russian criminal code in comparison with modern European codifications. [FN36] Let us examine the new Russian code from the perspective of three principles basic to modern penal systems: legality, culpability and ultima ratio of the criminal sanction. The general question to be addressed is to what extent the code successfully implements these principles.
 

The principle nullum crimen, nulla poena sine lege is considered as fundamental to the rule of law by all penal systems of continental Europe. It is commonly understood as including at least four requirements: 1) making statutory law the exclusive source of criminalization; 2) prohibition of criminalization by analogy; 3) prohibition of ex post facto laws; and 4) a requirement of definiteness of criminal statutes. [FN37]
 

The new code spells out explicitly first three requirements (arts. 3 and 10 sec. 1, 2d. sentence). A separate provision barring criminalization by analogy (art. 3 sec. 2), although normatively redundant, is historically understandable in view of the infamous provisions of the Soviet-Russian criminal codes of the 1920's. Given this strong aversion toward analogy, it is rather surprising that the code does not include any provision which would authorize imposition of criminal responsibility for "causing" harmful result by omission. Naumov approaches the matter as unproblamatic and flatly asserts that crimes defined in terms of bringing about ("causing") harmful results can be committed by omission as well as by action. [FN38] The conclusion is, however, far from obvious. The issue has been extensively discussed in European criminal law theory; many authors convincingly argued that omission as an absence of a positive action prescribed by law does not and cannot "cause" anything (ex nihilo nihil fit) although for reasons of social policy can be legally treated as if it were a causative factor. [FN39] The principle nullum crimen sine lege requires, however, explicit statutory authorization of criminal responsibility for such omissions as well as explicit statutory determination of triggering condition of such responsibility. A number of modern European penal codes include provisions addressing the issue. [FN40] It is considered axiomatic today that the requirement of definiteness of penal statutes is part-and-parcel of the principle of legality. Indeed, vague, open- ended penal legislation can easily reduce the nullum crimen *385 principle to an empty declaration. As Hans Welzel pointed out in his classical treatise,

"The particular danger threatening the principle nulla poene sine lege comes not so much from analogy, but rather from indefinite criminal statutes." [FN41]

The principle of culpability is recognized in European democracies as a fundamental precept of criminal law. Since criminal sanction expresses social condemnation, it must be personally deserved by an actor. Consequently, not only must the ascription of responsibility be contingent upon a finding of personal culpability, but the severity of punishment must not exceed the limits of actor's culpability. [FN45] Preventive goals of criminal punishment may be pursued only within the limits marked by culpability of an actor. This way the culpability principle works as a restrain on the government, as a safeguard against inflicting punishment on undeserving individuals for some *386 purely pragmatic reasons. [FN46] As Karl Lackner put it commenting on German law,

This recognition of the necessity of respecting the individual has provided the strongest impetus for the triumph of the principle of culpability. Concededly, legal theorists often wrote that a criminal law characterized by fairness and patently oriented to the justice most effectively acts to stabilize the general legal consciousness and to make the individual offender aware of the injury suffered. From this they concluded that a solution that respect the culpability principle should be preferred above all others on both general and specific preventive grounds. Yet, it is doubtful that this conclusion is empirically verifiable. In any event, it is useful only as a reinforcing argument because the recognition of the culpability principle follows directly from our picture of man and cannot be dispensed with regardless of preventive consequences. [FN47] (emphasis added)

Culpability (Russian - vina) - is a psychological relation of an individual towards a committed by him socially dangerous act and its consequences in the form of intent or negligence. [FN51]

*387 1) Arts. 5 sec. 2 and 28 sec. 1 explicitly rule out strict liability, that is liability for violations committed neither intentionally nor negligently;
 2) Art. 27 rules out what is known in Anglo-American law as a "lesser legal wrong theory," that is strict liability for harmful consequences resulting from a criminal act committed intentionally. Such consequences, according to this provision, may be ascribed to an actor and aggravate his responsibility only if they were covered at least by his negligence, that is when they could and should have been foreseen; thus strict criminal liability "in grading" is ruled out.
3) The code (art. 24 sec. 2 creates an interpretative presumption that liability for negligence may be imposed only when a specific statutory offense definition explicitly so provides, otherwise intent is presumed to be a requisite element of every offense. [FN53]
4) Sanity and maturity are essential preconditions of criminal responsibility (arts. 19-21). Moreover, the code introduces "diminished sanity" (art. 22) of mentally abnormal, but legally sane offenders as a relevant factor to be considered in mitigation at sentencing.

This assessment changes, when the new Russian code is examined from a broader perspective of the normative theory and compared with modern European codifications. The following deficiencies are readily notable:

1) The very formulation of the principle of culpability in art. 5 appears too narrow--it merely makes culpability of an actor an essential triggering condition for the criminal sanction, but does not require that severity of punishment be commensurate with actor's culpability; [FN55]
2) The code provides neither for excusing necessity nor for duress defenses. Art. 40, apparently dealing with "physical *388 or psychological compulsion," by its own terms falls far short of providing for such defenses. [FN56]
3) The code completely ignores the issue of mistake regarding legal prohibition thus inviting convictions of individuals who did not and could not realize illegality of their conduct. Several modern European codes provide for a full defense in instances of "unavoidable" mistake regarding legal prohibition, and for mitigation of punishment if such mistake is attributable to actor's negligence. [FN57]
4) The code ignores the issue of mistake regarding factual circumstances of justifications resulting, for example, in putative self-defense or putative necessity.

5) The code, following in the footsteps of the Soviet legal tradition, establishes a harsh rule of full responsibility of intoxicated offenders. Art. 23 flatly declares that for purposes of *389 criminal responsibility, intoxication, whether caused by alcohol or drugs, is irrelevant. The rule is inordinately harsh, since, at least on its face it seems to apply to voluntary as well as involuntary intoxication. Moreover, it does not even require that the actor foresaw or could have foreseen that consumption of an intoxicant would render him insane. Thus, the actors state of mind is disregarded not only with respect to his offending conduct, but also with regard to the conduct's underlying causes--the state of intoxication as well as the resulting insanity. [FN59]

The Ultima Ratio of the Criminal Sanction
 

The ultima ratio principle means that criminal sanction should be used only as a measure of last resort and only with a degree of severity not exceeding requirements of social necessity. In short, it is a principle of minimum punitiveness possible. This principle, albeit not explicitly articulated in the code, seems to have informed much of the drafting process. Excessive severity, one of the outstanding characteristics of Soviet criminal law, [FN60] has by no means been overcome in postcommunist Russia; in fact, the situation seems to have deteriorated. [FN61]
 

The new code, albeit timidly, marks a desperately needed first step in the right direction by both decriminalizing various types of conduct as well as ameliorating severity of sanctions. The following notable examples will illustrate a general tendency:

1) Under the old law, intent and negligence were recognized as general standards of mens rea. Thus unless a specific crime definition required intent, proof of negligence was sufficient for a conviction. As already mentioned above, the new code creates a contrary presumption. Art. 24 sec. 2 provides *390 that unless a statute defining a specific offense explicitly imposes responsibility for negligence, proof of intent should be required. This interpretative presumption should have a substantial decriminalizing effect. Moreover, it will force the legislature in all future cases to consider specifically whether as matter of policy it is necessary to extend criminalization to negligent conduct;
2) In contradistinction to a policy widely followed in other countries, [FN62] Soviet law, as a matter of general rule, criminalized not only attempt but also preparation. [FN63] The law criminalizing preparation was very seldom enforced, but its very existence gave agencies of prosecution a vast discretionary power inviting arbitrary/ abusive applications. Unfortunately the new code to some extent continues this unsavory tradition, although the scope of criminal preparation was limited to two gravest categories of offenses, that is only to crimes punishable by deprivation of freedom exceeding five years. By the same token, the new code decriminalized preparation regarding crimes punishable by deprivation of freedom up to five years. Moreover, a sentence imposed for preparation may now not exceed one half the statutory maximum penalty for a completed crime, whereas a sentence imposed for attempt may not exceed three fourths such statutory maximum. [FN64] Neither the death penalty nor life imprisonment may be imposed for attempt or preparation. [FN65]
3) The code fully decriminalized failure to report a crime, one of the most unsavory doctrines of the Soviet past. [FN66]
4) A list of non-custodial penalties was expanded. [FN67] The code mandates that the sentencing court apply custodial *391 sanctions only when non- custodial alternatives are unfeasible. In other words, the code articulates policy preference for non-custodial sentences. [FN68] This could be one of the most important innovations introduced by the code, given harsh sentencing patterns followed by the Russian courts [FN69] and terrible conditions prevailing in Russian prisons and detention centers. [FN70] The important question of whether the articulated legislative policy will be taken seriously by the Russian courts remains. The evidence so far is discouraging.
5) The code retained the death penalty, although only as an "exceptional measure." [FN71] This rhetoric regarding exceptionality of capital punishment should in view of the past and present experience be viewed skeptically until official behavior gives it some credibility. So far, the positive evidence is missing. [FN72] Reportedly, the legislative, judicial as well as executive branches of the government all but boycotted the international commitment made by Russia to the Council of Europe on this matter. [FN73] Nonetheless, the code itself substantially curtailed the number of capital offenses. *392 Capital punishment is applicable only to instances of aggravated homicide, [FN74] genocide [FN75] as well as assassination or attempted assassination of some public officers. [FN76]

Aspirations of the new criminal code appear to be high. The code is supposed to overcome the legacy of repressiveness and arbitrariness of the Soviet past, to create a system responsive to the needs of a society based on market economy, political pluralism and the rule of law. The code, therefore, is also expected to move Russian criminal law toward the mainstream of modern European penological theory and practice as well as to bring substantial stability to the country's criminal legislation. Even a cursory look at the code raises serious questions whether and, if so to what extent, those objectives have been met.
 

Comprehensive codification of criminal law, if it is to become a major factor of stability for the years to come, must be anchored in a broad consensus on basic issues of penal policy and doctrine. Such consensus was absent on the eve of codification in chaotic, deeply politically divided and crime ridden Russia. Frantic attempts to amend the code immediately after its adoption clearly demonstrate that the code failed to bring the expected stability.
 

One of the stubborn legacies of the Soviet past is a punitive mindset of the Russian general public--an inclination to seek solutions to societal problems in repressive measures. This mindset has been enhanced by the harsh realities of life in postcommunist Russia: staggering levels of street and white-collar criminality, conspicuous consumption of the predatory possessing class amidst widespread poverty. Popular anger directed at "thieves" and corrupt officials born of these conditions has been influencing politicians at all levels including members of the parliament and President of the Federation. In such social climate one can hardly expect broad support for *393 the rule of law and humanization of the penal system. The code's inconsistencies and half- hearted measures in this regard can be explained by two conflicting impulses: a desire to jettison the repressive legacy of the communist past and to conform to international human rights standards on the one hand and to respond to the public demands for severity on the other.
 

Finally, years of intellectual isolation of the Russian legal establishment took its toll. It seems that the legal elite of the country was not adequately prepared for the formidable task of the criminal law codification. Their inability to transcend the horizon of inherited Soviet doctrine appears to be one of the factors responsible for many flaws of the new code.
 

Stanislaw Pomorski is Distinguished Professor of Law, Rutgers University, School of Law, Camden, New Jersey.
 
FN1. Ugolovnyi kodeks Rossiiskoi Federatsii (R.F.), Sobraniie Zakonodatelstva R.F. 1996 #25, Item 2954 (hereafter S.Z.R.F.), approved by the lower house of the Parliament on May 24, 1996, by the upper house on June 5 1996, signed by President into law on June 13, 1996, effective as of January 1, 1997 (henceforth the criminal code or the code). Regarding legislative history of the code see Naumov, "The New Russian Criminal Code as a Reflection of Ongoing Reforms," 8 Criminal L. Forum 191, 197-98 (1997); Lammich, "Das neue russische Strafgesetzbuch von 1996," 109 Zeitschrift fur die gesamte Strafrechtswissenschaft, Heft 2, 417-19 (1997).
 

FN2. For a general discussion of an on-going law reform in Russia see Peter H. Solomon, Problemy razvitiia pravogo stroia v postsovetskoi Rossii (Problems of the Development of the Legal System in post-Soviet Russia) (1997); Reforming Justice in Russia 1864-1996, 282-396 (Peter H. Solomon ed. 1997); Gordon B. Smith, Reforming the Russian Legal System (1996). See also Solomon, "The Persistance of Judicial Reform in Comtemporary Russia," 6 East European Constitutional Review, No. 4, 50 (Fall 1997).
 

FN3. S. Z. R.F. 1997, No. 1, Item 1.
 

FN4. Ugolovno-ispravitel'nyi kodeks R.F., S. Z. R.F. 1997, No. 2., Item 198. The correctional code became effective as of July 1, 1997.
 

FN5. Personal communication from Professor Valerii Savitskii, an expert of the Russian Duma on criminal procedure. The new code of criminal procedure passed the "first reading" before the State Duma, in the summer of 1997. Rossiiskaia Iustitsiia 1997, No. 8, 17.
 

FN6. According to the opinion prevailing in the international business community, Russia is one of the world's most corrupt nations along with such countries as Nigeria, Colombia, Bolivia, Pakistan, Mexico, Indonesia, Venezuela, Vietnam and India. Barbara Crossette, "Survey Ranks Nigeria as Most Corrupt Nation," The New York Times, August 3, 1997, A-3. Reportedly, there were "twice as many homicides in Moscow in 1997 as in New York." Alexandra Stanley, "In Its Dreams Russia Solves Its Crime Problem," The New York Times, March 15, 1998, Section 4,4.
 

FN7. See Center for Strategic and International Studies Task Force Report, Russian Organized Crime (1997); Russian Organized Crime: The New Threat? (Phil Williams ed., 1997). See also Douglas Farah, "Russian Mob, Drug Cartels Joining Forces; Money Laundering, Arms Sales Spreading Across Caribbean," Washington Post, September 29, 1997, A-1. ("Barry R. McCaffrey, the Clinton administration's national drug-control policy director, said 'the Russians, along with Nigerians, are the most threatening criminal organizations based in the United States"' Id.)
 

FN8. Anatolii V. Naumov, Rossiiskoe ugolovnoe pravo. Obshchaia chast' (Russian Criminal Law. The General Part) 550 (1996) (hereafter Naumov).
 

FN9. The book does not discuss specific offenses included in the Special Part of the code (such as murder, rape, larceny, etc.) For a comprehensive exposition and analysis of the Special Part of the code see: V.N. Kudriavtsev and A.V. Naumov (eds.), Rossiiskoe ugolovnoe pravo. Osobennaia chast' (Russian Criminal Law. The Special Part) (1997); A.V. Naumov (ed.), Kommentarii k ugolovnomu kodeksu Rossiiskoi Federatsii (Commentary to the Criminal Code of the R.F.) 264-806 (1996) (hereafter Commentary).
 

FN10. Naumov, supra n. 8, Chapter III.
 

FN11. Id., Chapters IV-XIV, XIX
 

FN12. Id., Chapters XV-XVIII; XX-XXI. In these chapters, the author discusses the concept and purposes of criminal punishment, the "system of statutory penalties," the guiding principles of sentencing, the "release from punishment," amnesty, executive clemency and expungement of criminal record. In addition, the volume under review includes also a discussion of compulsory medical treatment of mentally deranged offenders as well as responsibility of juveniles, (Chapters XXIII and XXII respectively).
 

FN13. Regarding history of Russian criminal legislation see id., 60-89. The reader will find, dispersed throughout the book, short biographical sketches of better known Russian/Soviet criminal law writers emphasizing their contributions to particular areas of penal theory. The whole last chapter (XXV) is devoted to major schools of penological thought including, but not limited to, a discussion of thinkers of French and Italian enlightenment as well as theorists belonging to classical, anthropological and sociological schools of criminal law and criminology. Apropos the founder of the anthropological school (whose theory the author condemns with somewhat excessive zeal), Naumov relates a little known and amusing story about Lombroso's visit to Leo Tolstoy's estate Yasnaia Poliana. The visit took place in 1897. The creator of War and Peace was not impressed by the intellect and personality of his Italian guest. Naumov quotes a relevant entry in Tolstoy's diary, "Lombroso was here, a limited, naive oldster." Id., at 544. Contrary to the established academic wisdom, Naumov considers Enrico Ferri a member of the anthropological rather than sociological school. Id., at 543. For reasons unknown, great English theorists are completely ignored. J. Bentham, J. Austin, J.S. Mill and H.L.A. Hart are not mentioned even by name.
 

FN14. See id., Chapter XXIV. This chapter strikes me as less than impressive. The discussion is quite perfunctory, suffice it to say that the author's presentation of information about criminal law in the United States is limited to two (2) printed pages. Bibliographical references are skimpy and exclusively in Russian. A useful improvement for future editions of the book would be inclusion of a more developed discussion of foreign penal law, better integrated with a discussion of particular doctrines of Russian law. This approach would be more functional since it places particular segments of municipal law in a broader comparative perspective and enables the reader to draw his own conclusions about their relative merits or demerits. Such an integrative approach was successfully applied in a fine German criminal law treatise. See Hans-Heinrich Jescheck & Thomas Weigend, Lehrbuch des Strafrechts Algemeiner Teil. (Handbook of Criminal Law The General Part) (5th ed., 1996), where the authors at the end of topical sections dealing with German law present parallel information about foreign law on particular points.
 

FN15. Naumov, supra n. 8, at 46-57. See also Lammich, supra n. 1, at 419.
 

FN16. Naumov, supra n. 8, at 150.
 

FN17. The code, arts. 275-76, 278-79. Under the new code, capital punishment is provided for five offenses, each involving an aggravated intentional homicide or, in three instances, also an attempt thereof. Comp. arts. 105 sec. 2, 277, 295, 317 and 357.
 

FN18. Naumov, supra n. 8, at 84-85. The author does not mince any words denouncing also psychiatric repression against political and religious dissidents. Id., at 498.
 

FN19. On the very first page of the volume under review, Naumov salutes the USSR Supreme Court for the "very high professional level" of its jurisprudence. One wonders how a major operator of an admittedly oppressive, manipulative and corrupt system can at the same time deserve such laudatory evaluation. It has been common knowledge that Soviet judges were in fact pitiful clerics totally subservient to the power holders i.e., to the communist party apparatus.

The highest tribunal of the country was no exception. That much was openly and many times admitted even in the Soviet publications of the perestroika period. See Pomorski, "Communists and Their Criminal Law Revisited," 14 Law and Social Inquiry 581, 595 (1989) and the Soviet publications of the 1980's digested and cited therein. Naumov showers high compliments on scores of Soviet criminal law experts including individuals who played an active part operating the criminal law system even in its most repressive periods. See, for example, Naumov, supra n. 8, at 43.
 

FN20. Naumov treats with particular reverence a gigantic work of Professor N.S. Tagantsev, both as a theorist and a codifier of penal law. Tagantsev played a central role in the drafting of the 1903 criminal code and authored among many other learned works, a famous handbook of criminal law. Naumov, supra n. 8, 35, 41-42, 68-74.
 

FN21. Id., at 35, 74.
 

FN22. Lammich, supra n. 1, at 433.
 

FN23. Id.
 

FN24. Rossiiskie Vesti, July 18, 1997, 1; Lammich, supra n. 1, at 433.
 

FN25. Regarding specific instances see infra nn. 37-72 and accompanying text.
 

FN26. Naumov, supra n. 8, at 34.
 

FN27. Eser, "Justification and Excuse: A Key Issue in the Concept of Crime," in Albin Eser & George P. Fletcher (eds.), 1 Justification and Excuse. Comparative Perspective 17, 20 (1987). Regarding the "structured" approach to crime analysis in Japan, see Shigemitsu Dando, The Criminal Law of Japan: The General Part 57-192 (1997).
 

FN28. After listing six types of "circumstances excluding criminality of conduct," Naumov concludes,

All of these circumstances exclude criminal unlawfulness (...), as well as social dangerousness, culpability, punishability and consequently criminality. It means that conduct committed under these circumstances, does not include indicia of crime ...

Naumov, supra n. 8, at 326-27.

This statement, is clearly at odds with the "structured" approach to crime analysis. Under this approach, if a conduct in question does not include indicia ("material elements") of a crime charged, the question of "circumstances excluding criminality" never arises, since there is nothing to exclude, there is no prima facie case of criminality. Moreover, if an act is not "unlawful" the question of culpability should not arise, since the question of culpability becomes sensible only when conduct is wrongful or unlawful. To put it bluntly: when conduct in question is in conformity with prevailing law--there is nothing to forgive. See also a statement at id., at 328 obviously at odds with the distinction between justification and excuse.
 

FN29. Naumov inaccurately suggests that the code models a defense of superior orders after a pattern set by the Nuremberg law. Naumov, supra n. 8, at 356. In fact, quite the opposite is true. Art. 8 of the Charter of the International Military Tribunal, reads, "The fact that the defendant acted pursuant to order by his Government or a superior shall not free him from responsibility, but may be considered in mitigation of punishment if the Tribunal determines that justice so requires." For a further discussion see: Eser, " 'Defenses' in War Crime Trials," 24 Israel Yearbook of Human Rights 201, 204-13 (1984).
 

FN30. For a suggestive and lengthy description of governmental lawlessness in present day Russia see Amnesty International, "Torture in Russia. This man- made Hell," (April 1997).
 

FN31. Naumov, supra n. 8, at 356.
 

FN32. Let me illustrate this general statement by a horrifying and reportedly, not unrealistic example: As Amnesty International reports, a "secret instruction" of the Russian Ministry of Internal Affairs directed its "special forces" to practice martial arts by entering penal facilities and launching assaults on prisoners. Torture in Russia, supra n. 30, at 35. Let us suppose now that two members of the special forces carry out such assault: Private A while punching and kicking prisoners has no idea that his superiors, who ordered the assault, acted unlawfully, whereas corporal B who engages in a similar conduct, realizes the criminal nature of superior orders. Should inmates abused by the private be denied the right of self-defense while prisoners brutalized by the corporal be granted the right? How should they know that the former assailant was unaware of the criminal nature of the orders while the latter was aware of it? And why should it matter? Naumov never confronts these kind of issues.
 

FN33. Naumov, supra n. 8, at 202; V.V. Luneev, in Commentary, supra n. 9, at 85-86. The latter substantially misrepresents precepts of the normative theory.
 

FN34. The normative theory of culpability has vast literature, especially in Germany where it was initially conceived, developed (in several variations) and later incorporated as a part of the prevailing law. For a comprehensive discussion see Jescheck et al., supra n. 14, 417 ff. and authority cited therein. An excellent and concise discussion of the both psychological and normative theories of culpability can be found in Wladyslaw Wolter, Nauka o przestepstwie (Theory of Crime) 112-20 (1973).
 

FN35. Wolter, supra n. 34, at 119.
 

FN36. It appears that the new code, while discarding political underpinnings of the Soviet past, remains doctrinally conservative as far as general principles of criminal responsibility are concerned.
 

FN37. Hans-Heinrich Jescheck, "Czesc ogolna projektu z 1990 r. polskiego kodeksu karnego w swietle prawnoporownawczym (The General Part of the 1990 Draft Polish Criminal Code in Comparative Perspective)," Panstwo i Prawo 1992, No. 2, 27; Jescheck et al., supra n. 14, 126-42.
 

FN38. Naumov, supra n. 8, 173-74.
 

FN39. Jescheck, supra n. 37, at 28-29.
 

FN40. See German criminal code, §13 (1), which reads,

Whoever fails to prevent a harm which is part of the constituent elements of a crime may be punished under this Code only if he was under a legal duty to prevent the harm, and if his failure to act was equivalent to an effective act for purposes of establishing the statutorily defined constituent elements of the crime. (transl. by Joseph J. Darby.)

The Penal Code of the Federal Republic of Germany (1987). For a brief outline of law in other jurisdictions see Jescheck et al., supra n. 14, at 612-13. See also the 1997 Polish penal code, the Law of June 6, 1997, effective as of January 1, 1998, Journal of Laws No. 88, Item 553, art. 2.
 

FN41. Hans Welzel, Das Deutsche Strafrecht (German Criminal Law) 23 (11th ed. 1969).
 

FN42. Naumov, supra n. 8, at 89-90.
 

FN43. Id., at 94.
 

FN44. For a more extensive discussion of this theme in connection with the principle of legality see Pomorski, "Z problematyki tzw. normotwoczej dzialalnosci sadow w prawie karnym (Problems of Judicial Law--making in Criminal Law)," Panstwo i Prawo, 1969, Nos. 8-9, 368-76.
 

FN45. Jescheck, supra n. 37, at 29. In some countries, notably in Germany, the principle of culpability--acquired constitutional status. The German criminal code expresses the principle in §17 (unavoidable mistake of law is a full defense) and 46 (culpability as a basis of assessing punishment.) Adolf Schonke & Horst Schroder, Strafgesetzbuch Kommentar (The Criminal Code. Commentary) 289, 635 (25th ed. 1997). For a fuller discussion see Lackner, 'Insanity and Prevention: On Linking Culpability and Prevention in the Concept of Insanity," in Albin Eser et al. (eds.), 2 Justification and Excuse, supra n. 27, at 895, 902 (1987).
 

FN46. Id., at 913.
 

FN47. Id.
 

FN48. Art. 5, sec. 1 reads,

A person shall be subject to criminal responsibility only for those socially dangerous actions (omission) and socially dangerous consequences as to which his culpability is established.

(transl. by the author.)
 

FN49. See, for example Luneev, supra n. 33, at 85.
 

FN50. 2 Kurs sovetskogo ugolovnogo prava. Chast' obshchaia. Prestupleniie (Soviet Criminal Law. The General Part. Crime) 260 (A.A. Piontkovskii et al., eds.) (1960).
 

FN51. Naumov, supra n. 8, at 206.
 

FN52. Id., at 49.
 

FN53. This provision represents a significant novelty in Russian criminal legislation. For a further discussion see n. 61 infra and accompanying text.
 

FN54. See a discussion in Naumov, supra n. 8, at 236 ff.
 

FN55. For a comparison see the German criminal code §46 (1), first sentence, "The offender's culpability is the basis for the assignment of punishment." Schonke et. al., supra n. 45, at 635. See also the Polish penal code, supra n. 40, art. 53 §1.
 

FN56. Excusing necessity is a recognized extraordinary motivational situation which makes a violation of a primary prohibitory rule excusable. Jescheck et al., supra n. 14, 479-90. See, for example, §35 (1), 1st sentence of the German criminal code. Schonke et al., supra n. 45, at 580. See also the Polish penal code, supra n. 40, art. 26 §2. Art. 40 of the Russian code, insofar as it deals with physical compulsion making bodily movements involuntarily, is normatively redundant. Involuntary bodily movements, whether caused by physical compulsion or by other factors (such, for example, epileptic seizure) may not entail criminal responsibility since they are not considered human acts. Hans Welzel, Das neue Bild des Strafrechtsystems (The New Model of the Criminal Law System) 1 (1961); Wolter, supra n. 34, at 159-60; Wladyslaw Macior, Czyn ludzki i jego znaczenie w prawie karnym (Human Act and Its Significance in Criminal Law) 47-73 (1990).
 

FN57. Jescheck et al., supra n. 14, at 449-68. Recently, Spain, with its 1995 criminal code joined this group. See Jose Cerezo Mir, "Das neue Spanishe Strafgesetzbuch von 1995 (The New Spanish Criminal Code of 1995)," 108 Zeitschrift fur die gesamte Strafrechtswissenschaft 857, 860 (1996). Poland adopted the defense of unavoidable mistake of law already in its 1969 penal code and restated it in essence, in its 1997 penal code (n. 40 supra), art. 30. Naumov expresses a right intuition on this matter claiming that an offender who did not and could not realize that his conduct was unlawful should be free from criminal responsibility Naumov, supra n. 8, at 235. The problem is that neither the code itself, nor the psychological theory of culpability, give any support for this conclusion. Naumov, in support of this view cites a 1941 decision of the USSR Supreme Court of dubious authority today. Moreover, the decision grew out of a case where the government did not make the new law accessible to the defendant.
 

FN58. Naumov's efforts to fill the gap are only partially successful. First of all he addresses only the issue of putative self-defense, but does not raise the general issue of putative justifications. Secondly, even with respect to putative self-defense Naumov's position is ambivalent. Naumov, supra n. 8, at 335, 348.
 

FN59. Naumov flatly endorses the rule as justified by the needs of social protection against drunk offenders who "usually" (Russian: "kak pravilo") get drunk consciously and voluntarily. Naumov, supra n. 8, at 196. Naumov claims only a narrow exception for "pathological intoxication" cases where defendants can raise a defense of insanity. He rejects as ill-conceived a solution proposed by one of Russian writers trying to reconcile needs for social protection against drunk offenders with the culpability principle. (The proposal closely followed a solution adopted by German criminal code, (§323a) Id., 196-97. For an attempt at "softening" the harsh rule of the Russian code, see S.V. Borodin, in the Commentary, supra n. 9, at 83-84.
 

FN60. Pomorski, "Communists and their Criminal Law. Reflections on Igor Andreev's Outline of Criminal Law of Socialist States," 7 Rev. Socialist Law 7 (1981), the same, "Communists and their Criminal Law Revisited," 14 Law and Social Inquiry 581 (1989).
 

FN61. See in general: Torture in Russia, supra n. 30.
 

FN62. The general rule that only attempt should be criminalized whereas preparation should not has been followed in most countries. Jescheck et al., supra n. 14, 518-27; V.A. Panteleev, D. Kozochkin, V.A. Lichachev, Ugolovnoe pravo razvivaiushchikhsia stran. Obshchaia chast' (Criminal Law of the Developing Countries. The General Part) 87, 95 (1988).
 

FN63. Criminal Code of the RSFSR, art. 15.
 

FN64. Arts. 15 and 30, sections 1 and 2. The old criminal code of the RSFSR did not provide for such reduction of severity; its art. 15 section 3 authorized statutory maximum for criminal attempt or preparation at the same level of severity as statutory maximum for the respective completed crimes.
 

FN65. Art. 66, sections 2, 3, and 4. See however arts. 277, 295 and 317 providing for death penalty for assassination or attempted assassination of public officers. Naumov seems to favor full decriminalization of preparation, however expresses his preference in an oblique manner. Naumov, supra n. 8, at 268.
 

FN66. See in particular chapter 31 of the code, "Crimes Against Administration of Justice." Decriminalization of failure to report a crime has been noted by some Russian commentators. See, for example, Ugolovnyi kodeks Rosiiskoi Federatsii s kommentariiem B.V. Volzhenkina (The Criminal Code of the R.F. with Commentary by B.V. Volzhenkin) 222 (1996).
 

FN67. Naumov, supra n. 8, at 370-71; see also Naumov, The New Russian Criminal Code, supra n. 1, at 214.
 

FN68. Naumov, supra n. 8, at 400-07.
 

FN69. In 1995, Russian courts sentenced 34.1 percent of convicts to prison sentences. Lammich, supra n. 1, at 426. According to Marc Mayer, "Data for 1995 ... indicate that Russia and the United States remain as the leading world incarcerators of 59 nations for which we have current statistical information. The Russian rate of incarceration is 690 [inmates] per 100,000 [population at large] and the U.S. rate, is 600 per 100,000. These rates are generally 6-10 times the rates for most nations in western Europe". Marc Mayer, Americans Behind Bars: U.S. and International Use of Incarceration, 1995, 3 (1997). Even relative to other former Soviet republics, Russia's rate of incarceration is very high; by comparison the rate reported for the same year (1995) for Belarus is 505, Moldova 275, Ukraine 390. Moreover Russia's incarceration rate has been rapidly increasing: between 1993 and 1995 it has grown by 24 percent, that is from 558 to 690 inmates per 100,000 population at large. Id., 5-6. By midyear 1997, incarceration rates in the U.S. reached 645 inmates per 100,000 residents. U.S. Department of Justice Bureau of Justice Statistics. www.ojp.usdoj.gov/bjs. See also Fox Butterfield, "Defying Gravity, Inmates Population Climbs," The New York Times, January 19, 1998, A-10.
 

FN70. Torture in Russia, supra n. 30, at 28 ff.
 

FN71. Art. 59 sec. 1.
 

FN72. Naumov, supra n. 8, at 394; Torture in Russia, supra n. 30, at 45-46.
 

FN73. Torture in Russia, supra n. 30, at 45-46. See also Izvestia, January 25, 1997, at 2 (Reporting that after Russia's admission to Council of Europe 62 individuals were executed.) For a different view see Barry & Williams, "Russia's Death Penalty Dilemmas," 8 Crim. L. Forum 231, 242 (1997). Report Barry & Williams, "Several months after Russia's February 1996 admission [to Council of Europe], a de facto moratorium on executions was effected. As of late 1997 the moratorium was still in place." Id. According to President Yeltsin's statement of March 2, 1998, the de facto moratorium was introduced in May 1996 and is still in effect. Rossiiskie Vesti, March 3, 1998, 1. See also Vladimir Yemelyanenko, "Humaneness Is Too Expensive," Current Digest of the Post-Soviet Press, vol. XLIX, No. 40, 15 (Nov. 15, 1997). On March 30, 1998, President Yeltsin signed into law a legislative act adopted by both houses of the Russian parliament ratifying the European Convention on Human Rights. However, the ratification instrument excluded Protocol No. 6 to the Convention abolishing death penalty. See Rossiiskaia Gazeta, April 7, 1998, 3.
 

FN74. Art. 105, sec. 2.
 

FN75. Art. 357.
 

FN76. Arts. 277, 295, and 317. It is not clear what is the relation between these three provisions on the one hand and art. 66, sec. 4, which explicitly bars the death penalty (as well as life imprisonment) in cases of attempt. Unfortunately neither the book under review, nor other leading academic publications address this issue. See in particular Commentary, supra n. 9, comments to arts. 277, 295 and 317; Kudriavtsev et al., supra n. 9, at 398, 418. Arguably arts. 277, 295, and 317 as special provisions make art. 66 sec. 4 inapplicable in cases of attempted assassination of public officers enumerated in the respective provisions.