Article 34 of the Criminal Code of the Russian Federation with Commentary 2021: latest changes and amendments, judicial practice

ST 34 of the Criminal Code of the Russian Federation.

1. The liability of accomplices to a crime is determined by the nature and degree of actual participation of each of them in the commission of a crime.

2. Co-perpetrators are liable under the article of the Special Part of this Code for a crime committed by them jointly, without reference to Article 33 of this Code.

3. Criminal liability of the organizer, instigator and accomplice occurs under the article providing for punishment for the crime committed, with reference to Article 33 of this Code, except for cases where they were simultaneously co-perpetrators of the crime.

4. A person who is not the subject of a crime specifically specified in the relevant article of the Special Part of this Code, who participated in the commission of a crime provided for by this article, bears criminal liability for this crime as its organizer, instigator or accomplice.

5. If the perpetrator does not complete the crime due to circumstances beyond his control, the remaining accomplices bear criminal liability for preparation for a crime or attempted crime. A person who, due to circumstances beyond his control, failed to persuade other persons to commit a crime, is also criminally liable for preparation for a crime.

Commentary to Art. 34 Criminal Code

1. In accordance with the rules enshrined in parts 2 - 3, the qualification of actions of accomplices (except for the performer) is carried out necessarily with reference to the specific part of Art. 33 of the Criminal Code.

2. The qualifications of the actions of accomplices are influenced by the personal characteristics of the perpetrator of the crime (his social, official position, etc.). If these signs are related to the object and objective side of the crime, i.e. directly affect the degree of his social danger (for example, the official position of the performer), then they must be imputed to other accomplices, subject to their awareness. If such signs relate exclusively to the personality of one of the accomplices (for example, a state of passion, family relationships), then they should not be imputed to the accomplices.

3. The motives and purposes of committing a crime, which are a constructive or qualifying feature of the crime, are also subject to imputation to accomplices, provided that they were aware of them (although not necessarily shared).

4. Certain features are inherent in the criminal liability of accomplices in the case of committing a so-called crime with a special subject (perpetrator) (for example, official, military crimes). The actions of a special subject as a performer should be qualified according to the relevant article of the Special Part of the Criminal Code without reference to Art. 33 of the Criminal Code, and of the general subject - under the corresponding article of the Special Part of the Criminal Code with reference to Parts 3, 4 or 5 of Art. 33 of the Criminal Code (as an organizer, instigator, accomplice).

Second commentary to Art. 34 of the Criminal Code of the Russian Federation

1. The basis for criminal liability of accomplices is the joint commission of an act containing all the elements of a crime provided for by the Criminal Code of the Russian Federation. Considering that all elements of crimes contain signs of an objective side, performed only by the perpetrator, the actions (inaction) of other accomplices must be qualified with reference to the relevant part of Art. 33 of the Criminal Code of the Russian Federation, which defines their role in the commission of a crime (Part 3 - organizer, Part 4 - instigator, Part 5 - accomplice). The actions (inaction) of the performer are qualified only under the article of the Special Part of the Criminal Code of the Russian Federation (without reference to Article 33).

If the organizer, instigator or accomplice is at the same time the perpetrator of a crime, then his actions (inaction) are qualified only under the article of the Special Part of the Criminal Code of the Russian Federation (without reference to Article 33).

Organizational actions include, inter alia, inducing other persons to commit a crime and assisting them in this, therefore, if the instigator or accomplice is also the organizer of the crime, then his actions must be qualified under the article of the Special Part with reference only to Part 3 of Art. . 33 of the Criminal Code of the Russian Federation.

2. Part 4 of the commented article establishes the qualification rule for complicity with a special subject. According to it, a person who does not have the characteristics specifically specified in the article of the Special Part of the Criminal Code of the Russian Federation, who participated in the commission of a crime under this article, bears criminal liability as an organizer, instigator or accomplice of this crime, even if he actually performed part of the objective side.

3. Part 5 of the commented article establishes a qualification rule for complicity in an unfinished crime. According to it, the organizer, instigator and accomplice, if the perpetrator does not complete the crime due to circumstances beyond his control, bear criminal liability, respectively, for preparation of a crime or attempted crime (with reference not only to the relevant part of Article 33, but also to Part. 1 or part 3 of article 30 of the Criminal Code of the Russian Federation). An organizer or instigator who, due to circumstances beyond his control, failed to persuade other persons to commit a crime, is also criminally liable for preparation for a crime.

Liability of accomplices in crime

1. The liability of accomplices to a crime is determined by the nature and degree of actual participation of each of them in the commission of a crime.
2. Co-perpetrators are liable under the article of the Special Part of this Code for a crime committed by them jointly, without reference to Article 33 of this Code.

Third commentary to Article 34 of the Criminal Code of the Russian Federation

1. Complicity does not create additional grounds for criminal liability. Consequently, the basis for the responsibility of each accomplice is the commission of an act containing all the elements of a crime. In this case, each accomplice is responsible independently, within the limits of personal guilt, and bears personal responsibility, which, in turn, is determined by the nature and degree of actual participation of each of them in the commission of the crime. This is the difference between our domestic theory of complicity and other concepts.

2. The nature and degree of actual participation in the commission of a crime reflect the specific features of complicity and depend on the significance of the actions (inaction) of the accomplice, his contribution to the achievement of the criminal result. The nature of participation reflects the functional role played by the accomplice, the degree of participation is a measure of activity in the process of joint activity. For example, the role of the organizer of a crime, as a rule, is recognized as more dangerous in comparison with the role of an accomplice, which, undoubtedly, must be taken into account when assigning a fair punishment to the guilty. Although the role of inciting a minor to commit a crime is no less dangerous than even the role of the organizer.

3. The specificity of the liability of accomplices is manifested in the fact that they are all liable under the same article (part, paragraph of the article) of the Criminal Code of the Russian Federation. Moreover, in the case where the accomplices acted as perpetrators (co-perpetrators) of the crime, the qualification of their actions does not require an additional reference to Art. 33 of the Criminal Code. It is another matter if the accomplices played the role of organizer, instigator or accomplice and were not co-perpetrators of the crime. A legal assessment of their actions requires reference to the relevant part of Art. 33 of the Criminal Code, reflecting the role they played. This is explained by the fact that these accomplices did not directly encroach on the object of criminal legal protection. Therefore, the basis for their responsibility is an act containing not only elements of a crime in the commission of which they took joint part, but also signs characterizing their role in this crime.

4. As is known, the perpetrator of a crime must have the general characteristics of the subject, as well as special characteristics that are mandatory for the relevant elements of the crime. Thus, only an official can be the perpetrator of a bribe. A person who is not such, but commits an action covered by the elements of this crime, bears criminal liability as its organizer, instigator or accomplice.

5. The act of accomplices cannot be considered in isolation from the act of the perpetrator.
There is a connection between the organizer, instigator and accomplice, on the one hand, and the perpetrator, on the other hand, which is manifested in the fact that the degree to which the perpetrator approaches the realization of the criminal goal intended by all accomplices determines the resolution of the issue of the responsibility of the accomplices. Therefore, in the event that the perpetrator does not complete the crime due to circumstances beyond his control, the remaining accomplices bear criminal responsibility for preparing for this crime or attempting to commit it. This issue is resolved similarly in case of unsuccessful incitement - the person is subject to responsibility for preparing for the crime that he tried to persuade another person to commit. ‹ Article 33. Types of accomplices in a crimeUp Article 35. Committing a crime by a group of persons, a group of persons by prior conspiracy, an organized group or a criminal community (criminal organization) ›

Judicial practice under Article 34 of the Criminal Code of the Russian Federation

Resolution of the Presidium of the Supreme Court of the Russian Federation dated March 29, 2017 N 27P17
When deciding the issue of reclassifying the actions of the organizer of the crime, it was based on the fact that Part 3 of Art. The Criminal Code of the Russian Federation, regardless of the circumstances relating to the organizer of the crime (including regardless of the direction of intent, the motive, the purpose of his actions), presupposes the qualification of what he has done according to the same norm of criminal law as the actions of the perpetrator.

Appeal ruling of the Judicial Collegium for Military Personnel of the Supreme Court of the Russian Federation dated May 17, 2018 N 203-APU18-6

The court also correctly took into account the fact that, in accordance with Part 2 of Art. and part 5 of Art. Of the Criminal Code of the Russian Federation, participants in an organized group, regardless of the nature of their activities aimed at committing a crime, are recognized as co-perpetrators and are held liable for this crime as for an act committed by them jointly, without reference to Art. Criminal Code of the Russian Federation.

Appeal ruling of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated August 21, 2018 N 48-APU18-13

According to Part 2 of Art. Under the Criminal Code of the Russian Federation, co-perpetrators bear criminal liability for crimes committed by them jointly. When assigning punishment to Magomedov, the court took into account not only the nature and degree of public danger of the crimes committed, but also other circumstances, including mitigating the punishment - confession of the crime after detention, his statement about it, provided for in paragraph “i” of Part 1 of Art. Criminal Code of the Russian Federation. In addition, the court actually recognized the age of the convicted person and his state of health as mitigating circumstances.

Appeal ruling of the Judicial Collegium for Military Personnel Cases of the Supreme Court of the Russian Federation dated August 22, 2019 N 208-APU19-8

In support of the complaint, lawyer Kuleshov points to the erroneous classification of Grimsultanov’s actions as a completed crime, without reference to Art. of the Criminal Code of the Russian Federation, and in connection with this, the absence in the sentence of the end of his criminal actions. Since the crime prepared by Yusupov was not completed, then Grimsultanov, by virtue of the provisions of Parts 3 and 5 of Art. of the Criminal Code of the Russian Federation, must be held accountable for an unfinished crime.

Appeal ruling of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated August 22, 2019 N 33-APU19-16

According to the provisions of Art. According to the Criminal Code of the Russian Federation, the responsibility of accomplices in a crime is determined by the nature and degree of actual participation of each of them in the commission of a crime. In Art. The Criminal Code of the Russian Federation provides for the following forms of committing group crimes that are subject to qualification as co-perpetrators: a group of persons, a group of persons by prior conspiracy, an organized group, a criminal community (criminal organization), which differ from each other in the degree of cohesion, internal organization, and methods of communication of accomplices within the system.

Appeal ruling of the Judicial Collegium for Military Personnel Cases of the Supreme Court of the Russian Federation dated November 19, 2019 N 205-APU19-36

At the same time, the court, in accordance with the requirements of Art. The Criminal Code of the Russian Federation correctly takes into account the nature and extent of Kadyrov’s actual participation in the commission of a crime, the significance of this participation for achieving the goals of criminal activity, its influence on the nature and extent of harm caused to social relations protected by law.

Appeal ruling of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated July 19, 2018 N 4-APU18-23

Appeal ruling of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated 02/05/2019 N 31-APU19-1

Contrary to the arguments of the appeals by virtue of Part 2 of Art. and part 5 of Art. Criminal Code of the Russian Federation actions of Ivanov V.N. and other participants are correctly assessed as co-perpetrators of crimes. Grounds for combining the actions of Nikolaev E.A. there is no continuing crime, since the actual circumstances of the transfer of each of the two bundles are different, and therefore cannot be considered as one crime.

Appeal ruling of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated 02.02.2017 N 30-APU17-1SP

In accordance with Part 3 of Art. Of the Criminal Code of the Russian Federation, criminal liability of the organizer, instigator and accomplice occurs under the article providing for punishment for the crime committed, with reference to Article 33 of this Code, except for cases where they were simultaneously co-perpetrators of the crime.

Appeal ruling of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated 02/07/2017 N 32-APU17-2sp

Since Khairulin was convicted of aiding and abetting a crime committed by a group, when sentencing him, the court must be guided not only by the provisions of Part 3 of Art. of the Criminal Code of the Russian Federation, but also taken into account in accordance with Part 1 of Art. , part 1 art. of the Criminal Code of the Russian Federation, the nature and extent of his actual participation in the commission of a crime, the significance of this participation in achieving the goal of the crime.

Appeal ruling of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated May 18, 2017 N 20-APU17-5

Analysis of the legal provisions of the norms of the criminal law (Article , , , of the Criminal Code of the Russian Federation) does not prevent the qualification of the actions of perpetrators and other accomplices of the crime under different articles and different parts of the same article of the Special Part of the Criminal Code of the Russian Federation, depending on their actions, goals and motive criminal behavior.