Comments on Article 32 of the Criminal Code of the Russian Federation
The commission of a crime by several persons, as a general rule, facilitates the achievement of a criminal result and concealment of traces of the crime, often complicating the work of law enforcement agencies in searching for criminals and exposing them. Some crimes can only be committed by the association of several persons, for example: banditry, organization of a criminal community and participation in it, violent seizure of power, armed rebellion and other crimes.
The concept of complicity, enshrined in Art. 32 of the Criminal Code of the Russian Federation, indicates its four main features:
1) two objective signs : participation in a crime of two or more persons and joint participation; 2) two subjective characteristics : intentional participation and participation in a deliberate crime.
Objective signs include quantitative and qualitative characteristics.
Second commentary to Art. 32 of the Criminal Code of the Russian Federation
1. The commented norm gives a legal definition of the concept of complicity in a crime, from which it follows that complicity is possible only if there are two objective signs: 1) participation in the crime of two or more persons (quantitative sign) and 2) joint participation (qualitative sign) - and two subjective characteristics: 1) intentional participation and 2) participation in a deliberate crime.
2. The first objective sign (participation of two or more persons) means that at least two individuals who meet the general conditions of criminal liability (sanity and reaching the age of criminal responsibility) must participate in the commission of a crime. It should be borne in mind that in law enforcement activities this feature is often understood as the participation of any individuals, including those not subject to criminal liability. Therefore, in judicial practice there are cases of unjustified imputation of the qualifying sign of committing a crime by a group of persons or a group of persons by prior conspiracy to one of the co-perpetrators of a socially dangerous act, while the other is not brought to criminal liability due to insanity or not reaching the appropriate age (Review of the judicial practice of the Supreme Court of the Russian Federation for the III quarter of 2004; resolution of the Presidium of the Moscow City Court dated May 18, 2011 No. 4у/4-3223).
The second objective sign (joint participation) presupposes the presence of a functional connection between the accomplices in the crime. This connection consists in the direction of the actions (inaction) of the accomplices towards the commission of a single socially dangerous act or the achievement of a common criminal result.
3. The first subjective sign (deliberate participation) means that the accomplices are aware of the social danger and the volitional direction of each other’s joint activities. Some accomplices may not know others (for example, as part of an organized group or criminal community), but if they understand that they are acting together with other persons (at least one) in committing a crime, then this is enough to recognize complicity in the crime.
The second subjective feature (participation in an intentional crime) excludes the possibility of recognizing reckless co-infliction of harm as complicity. Participants must be aware of the social danger of their actions (inaction), the actions (inaction) of the perpetrator of the crime, foresee the possibility or inevitability of the occurrence of socially dangerous consequences and desire this. At the same time, the motives for committing a crime among accomplices may be different, for example, the instigator acts out of motives of national hatred or enmity, and the perpetrator acts out of selfish motives.
Participation in a crime of two or more persons
The first objective (quantitative) sign of complicity assumes that two or more persons who have reached the age of criminal responsibility (Parts 1 - 2 of Article 20 of the Criminal Code of the Russian Federation) and are recognized as sane (Part 1 of Article 21) are involved in the commission of a crime. Criminal Code of the Russian Federation).
The commission of a crime using a person who is not subject to criminal liability due to age or insanity does not create complicity.
At the same time, in judicial practice, crimes committed by two or more persons, of which only one has the characteristics of a common subject of the crime, are also considered as group crimes. Thus, in the Ruling of the Supreme Court of the Russian Federation of May 18, 2006 N 35-o06-14 it is stated that the position according to which the actions of the perpetrator cannot be considered committed by a group of persons by prior conspiracy in connection with the recognition of the second person as insane, is not based on the law. Thus, the qualifying features “group of persons”, “group of persons by prior conspiracy”, “organized group” can be imputed even in the absence of complicity in the strict sense of the word, if only one of the participants in the act is brought to criminal liability, and the other participants are not liable due to age or insanity.
Commentary to Art. 32 of the Criminal Code
1. From the definition of complicity, two objective and two subjective signs of complicity follow.
2. The first objective (quantitative) sign of complicity presupposes that two or more persons who have reached the age of criminal responsibility (Parts 1 - 2 of Article 20 of the Criminal Code) and recognized as sane (Part 1 of Art. 21 CC). There are two exceptions to this criterion of complicity: mediocre execution (see commentary to Article 33 of the Criminal Code) and group execution of a crime (see commentary to Article 35 of the Criminal Code).
The second objective (qualitative) sign of complicity presupposes the joint actions of the accomplices, i.e. the focus of actions on committing a crime common to the accomplices, interdependence and complementarity of actions.
The first subjective sign of complicity presupposes the intentionality of complicity. At the same time, intentional complicity does not always require knowledge of the commission of a crime together with other persons. Thus, the accomplice may not know about the actions of the instigator (and vice versa); Mutual awareness is not required in the chain “perpetrator - instigator (accomplice)”, i.e. “disguised” incitement or aiding is possible when the perpetrator, who deliberately commits a crime, is not aware of the nature of the joining activity of the instigator (accomplice), while the latter wants to induce the perpetrator to commit a crime or assist him in committing it. In addition, in such forms of complicity as an organized group and a criminal community (criminal organization), the accomplices may not only not know each other personally, but may not even be aware of their mutual existence, which, however, does not prevent the establishment of complicity.
The second subjective sign of complicity is closely related to the intentionality of complicity, due to which complicity is possible only in a deliberate crime. Externally, the joint commission of a careless crime is called reckless co-infliction; the actions of each of the co-causers are qualified separately under the relevant article of the Special Part of the Criminal Code.
Joint actions of partners
The second objective (qualitative) sign of complicity presupposes the joint actions of the accomplices , i.e. the focus of actions on committing a crime common to the accomplices, interdependence and complementarity of actions. Each of the participants makes his own “contribution”, “share” to the common “piggy bank” of complicity, the withdrawal of which would, under the given circumstances, lead to a failure to achieve this result. The degree of participation of each accomplice may vary:
- a) all participants fully perform actions (inaction) that characterize the objective side of the crime;
- b) the actions of one participant complement the actions of another person;
- c) the actions of one participant create conditions for the commission of actions by other persons.
An important sign of compatibility is the presence of a causal connection between the actions of all participants; they are aimed at committing a common crime and achieving a common socially dangerous consequence.
Intentionality of complicity
The first subjective sign of complicity presupposes the intentionality of complicity . Intent must cover the fact of joining forces (joint actions) with other persons. Therefore, it is impossible to participate in a careless crime when, as a result of the conscious actions of several persons, consequences unforeseen by them occur.
Deliberate participation not only means a person’s awareness of the fact of participation in a crime and a strong-willed focus on committing it, but also presupposes a minimal two-way subjective connection between the accomplices, their awareness of the fact of committing a crime in complicity, i.e. the fact of assistance (help) of other accomplices.
For complicity, it is sufficient that the accomplice knew about the criminal activity of at least the perpetrator, even if he was not aware of the role of other accomplices (for example, an accomplice may not know about the actions of the instigator or another accomplice). The intent of the accomplice must necessarily include the activity of the performer, since the qualification of the actions of other accomplices depends on it.
The type of intent with which accomplices act, according to some scientists, can only be direct, while others believe that complicity in a crime is possible with indirect intent. The latter point of view is preferable. For example, two people beat a third together, realizing that serious harm to the victim’s health may occur, and deliberately allow it to happen, being indifferent to it.
The motives and goals with which accomplices act may coincide, but this is not obligatory. One of the participants acts, for example, for selfish reasons, the other out of revenge, but with joint efforts they strive for a single criminal result. Damaging someone else's motorcycle, one of the teenagers does it out of revenge, and the other out of envy. Both are co-perpetrators of intentional damage to someone else's property. When the motives and goals of a crime are indicated as signs of its composition, responsibility for complicity is possible only if the person is aware of such a motive or goal.
Judicial practice under Article 32 of the Criminal Code of the Russian Federation
Determination of the Constitutional Court of the Russian Federation dated February 28, 2019 N 547-O
Since complicity in a crime (Article of the Criminal Code of the Russian Federation) presupposes the corresponding subjective and objective signs, the qualification of acts committed jointly by persons in a state of insanity on the basis of a group method of committing a crime means establishing compliance of such an act with the objective criteria provided for in the relevant norms of the Special Part of the Criminal Law (including part five of Article 134 and part four of Article 135 of this Code).
Appeal ruling of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated July 3, 2019 N 5-APU19-54
law enforcement agencies of the Republic of Tajikistan for criminal prosecution under paragraph “d”, part 4 of art. 200, paragraph 4 of Art. , part 3 art. , part 2 art. 289 of the Criminal Code of the Republic of Tajikistan. Having heard the report of judge Shmotikova S.A. about the circumstances of the case and the arguments of the appeals, explanations of Akhmedov D.M. and the speech of lawyer I.V. Zhivov, who supported the arguments set out in the complaints, the opinion of prosecutor Z.L. Abramova. about the absence of grounds to satisfy the complaints, Judicial Collegium
Determination of the Constitutional Court of the Russian Federation dated November 28, 2019 N 3245-O
As indicated by the Constitutional Court of the Russian Federation in its Determination of September 21, 2021 N 1797-O, activities that are addressed to an indefinitely wide range of persons and go beyond the scope of classical complicity in those of its forms and types that are enshrined in articles - the Criminal Code of the Russian Federation and imply an individualized subjective connection between persons jointly participating in the commission of a specific intentional crime as a perpetrator, organizer, instigator and accomplice. However, being addressed to the mass consciousness or the attention of certain segments of society, segmented along religious, ethnic and other grounds, and aimed at creating an environment of acceptability of the ideology of terrorism and even the desirability of its translation into public practice, this activity also raises the need for adequate and effective measures preventive in nature. It is unacceptable to use the constitutionally and conventionally guaranteed freedom of conscience and religion, freedom of speech and the right to disseminate information, which would allow a person, in violation of the norms of national legislation and corresponding international legal norms, which are an integral part of the legal system of Russia, to freely and with impunity commit any either actions aimed at publicly inciting terrorism or its public justification.
Appeal ruling of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated August 13, 2019 N 86-APU19-1sp
Analyzing the provisions of Art. Art. , , the Criminal Code of the Russian Federation, concludes that Philozop’s actions are neither co-execution nor aiding, and therefore he was illegally convicted of murder by a group of persons. He also considers the punishment imposed on Philozopus unfair. He notes that by assigning Philozop a punishment close to the maximum possible, without citing specific circumstances of the crime, the court formally motivated this by the high level of social danger of the crime. However, these circumstances are fully covered by the imputed corpus delicti and could not be additionally and repeatedly taken into account when assigning punishment.
Determination of the Constitutional Court of the Russian Federation dated September 21, 2017 N 1797-O
Thus, activity addressed to an indefinitely wide range of persons and going beyond the framework of classical complicity in those of its forms and types that are enshrined in the articles of the Criminal Code of the Russian Federation and imply an individualized subjective connection between persons jointly participating in the commission of a specific intentional crime as performer, organizer, instigator and accomplice. However, being addressed to the mass consciousness or the attention of certain segments of society, segmented along religious, ethnic and other grounds, and aimed at creating an environment of acceptability of the ideology of terrorism and even the desirability of its translation into public practice, such activities also raise the need for adequate and effective measures preventive in nature.
Cassation ruling of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated May 27, 2021 N 75-UDP21-8-K3
In the cassation submission, Deputy Prosecutor General of the Russian Federation I.V. Tkachev asks to cancel the cassation ruling and send the criminal case for a new cassation hearing to the Third Cassation Court of General Jurisdiction. In support of his position, he reveals the content of the provisions of Art. , part 2 art. , part 2 art. The Criminal Code of the Russian Federation, cites Chepikov’s testimony, as well as other evidence consistent with it, considers that the objective side of the crimes in each case was carried out by Chepikov himself jointly and by prior conspiracy with L., as established by the courts of first and appellate instances, which made it possible to recognize, in in turn, in Chepikov’s actions the presence of a qualifying feature provided for in paragraph “a” of Part 2 of Art. 158 of the Criminal Code of the Russian Federation.
Appeal ruling of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated June 16, 2021 N 8-APU21-1-K2
The fact that the media of the Yaroslavl region reported to an indefinite circle of people about the fact of the alleged act and the involvement of a person with a criminal record in it is not in itself an absolute basis for doubts about the objectivity and impartiality of the future composition of the jury. In accordance with the requirements of Chapter 42 of the Code of Criminal Procedure of the Russian Federation, this issue is subject to resolution during the formation of a jury by the court of first instance, which received the criminal case under territorial jurisdiction, provided for by the provisions of Art. Criminal Code of the Russian Federation.
Complicity in a deliberate crime
The second subjective sign of complicity is closely related to the intentionality of complicity and means that complicity is possible only in an intentional crime . Externally, the joint commission of a careless crime is called reckless co-infliction; the actions of each of the co-causers are qualified separately under the relevant article of the Special Part of the Criminal Code of the Russian Federation.
Careless co-infliction of harm is not complicity , although it is possible that the same consequences were imputed through negligence to all co-causers (for example, a car collision that resulted in the death of a person was due to the fault of two drivers, each of whom crossed the road marking line separating oncoming lanes, — both drivers may be held liable for traffic violations that resulted in the death of the victim).
In a crime with two forms of guilt, complicity is excluded , since in relation to harmful consequences in this case only careless guilt is possible. For example, if as a result of a joint beating through negligence the death of the victim occurred, the act cannot be recognized as intentional infliction of grievous harm to the health of a person, which through negligence resulted in his death, committed in complicity.
