New edition of Art. 210 of the Criminal Code of the Russian Federation
1. Creation of a criminal community (criminal organization) for the purpose of committing one or more serious or especially serious crimes or management of a criminal community (criminal organization) or its structural units, as well as coordination of the actions of organized groups, the creation of stable connections between them , development of plans and creation of conditions for the commission of crimes by organized groups, division of spheres of criminal influence and (or) criminal proceeds between such groups -
shall be punishable by imprisonment for a term of twelve to twenty years with a fine in the amount of up to five million rubles or in the amount of the wages or other income of the convicted person for a period of up to five years, or without it and with restriction of freedom for a term of one to two years.
1.1. Participation in a meeting of organizers, managers (leaders) or other representatives of criminal communities (criminal organizations) and (or) organized groups for the purpose of committing at least one of the crimes provided for in part one of this article -
shall be punishable by imprisonment for a term of twelve to twenty years with a fine in the amount of up to one million rubles or in the amount of the wages or other income of the convicted person for a period of up to five years, or without it, and with restriction of freedom for a term of one to two years.
2. Participation in a criminal community (criminal organization) -
shall be punishable by imprisonment for a term of seven to ten years with a fine in the amount of up to three million rubles or in the amount of the wages or other income of the convicted person for a period of up to five years, or without it and with restriction of freedom for a term of one to two years.
3. Acts provided for in parts one, one.1 or two of this article, committed by a person using his official position, -
shall be punishable by imprisonment for a term of fifteen to twenty years with a fine in the amount of up to five million rubles or in the amount of the wages or other income of the convicted person for a period of up to five years, or without it, and with restriction of freedom for a term of one to two years.
4. Acts provided for in parts one or one.1 of this article, committed by a person occupying a higher position in the criminal hierarchy -
shall be punishable by imprisonment for a term of fifteen to twenty years with a fine in the amount of up to five million rubles or in the amount of the wages or other income of the convicted person for a period of up to five years, or without it and with restriction of freedom for a term of one to two years or life imprisonment freedom.
Notes. 1. Founders, participants, managers, members of management bodies and employees of an organization registered as a legal entity, and (or) managers, employees of its structural division are not subject to criminal liability under this article only due to the organizational structure of the organization and (or) its structural unit and the commission of any crime in connection with the exercise of their powers to manage the organization or in connection with the organization’s implementation of entrepreneurial or other economic activities, except for the case when this organization and (or) its structural unit were knowingly created to commit one or several serious or especially serious crimes.
2. A person who has committed at least one of the crimes provided for in this article, who has voluntarily ceased participation in a criminal community (criminal organization) or a structural unit included in it, or who has reported an upcoming meeting of organizers, managers (leaders) or other representatives of criminal communities (criminal organizations) and (or) organized groups and actively contributed to the disclosure or suppression of the activities of a criminal community (criminal organization) or a structural unit included in it (it) and (or) the disclosure and (or) suppression of crimes committed by a criminal community (criminal organization) ) or a structural unit included in it (her), is exempt from criminal liability unless its actions contain another crime.
Commentary on Article 210 of the Criminal Code of the Russian Federation
1. Organized crime in Russia during the years of market reforms became a mass phenomenon that threatens the foundations of public security. And although the share of organized crimes among all solved crimes is 1.5%, their real scale is much greater. According to expert estimates, organized crime controls 40% of entrepreneurs and 66% of all commercial structures. 70 - 80% of privatized enterprises and commercial banks are subject to “tribute” <1>. ——————————— <1> See Luneev V.V. Crime of the XX century. World criminological analysis. M., 1997. P. 304.
2. The objective side is expressed in the creation of a criminal community to commit grave or especially grave crimes (Part 1); leadership of such a community (part 1); management of structural units included in the criminal community (Part 1); creating an association of organizers, leaders or other representatives of organized groups in order to develop plans and conditions for the commission of grave or especially grave crimes (Part 1); participation in a criminal community (part 2); participation in the association of organizers, leaders or other representatives of organized groups (Part 2).
2.1. For the concepts of “creation” and “management”, see the commentary to Art. 209 of the Criminal Code of the Russian Federation.
3. Participation in a criminal community or in an association of organized groups means membership in them, manifested in negotiations, meetings, discussion of the activities of the community or association, in carrying out orders, tasks of the leaders of the community or association. Comment. The article, unlike banditry, does not provide for criminal penalties for participation in crimes committed by a criminal community.
4. For the concept of a criminal community (criminal organization), see commentary. to Art. 35.
5. The crime is completed (by the main group) at the moment of creation of the criminal community (criminal organization). Therefore, the commission of specific grave and especially grave crimes by a community is classified as a set of crimes.
6. From the subjective side, the elements of a crime are characterized by direct intent and the special purpose of committing grave and especially grave crimes. For the concepts of “serious crime” and “especially serious crime”, see Art. 15 of the Criminal Code.
7. Part 3 comment. Article 210 of the Criminal Code of the Russian Federation strengthens the punishment for the creation, management of a criminal community or their association, participation in it, committed by a person using his official position. For the concept of this qualifying feature, see the commentary. to Art. 209.
8. Note on comments. The article provides for the possibility of releasing a person from the supervised release in connection with active repentance.
9. The acts described in parts 1 and 3 refer to especially serious crimes, and in part 2 - to serious crimes.
Organized crime raiders, pimps and deputies
In the summer of 2021, former City Duma candidate and lawyer Alexei Klimov was arrested in Voronezh. According to investigators, the lawyer, together with two former police officers Viktor Vostrikov and Roman Kornev, as well as another local resident Alexander Boldyrev, organized a brothel “for direct financial gain.” The girls who “worked” for the group were kept in the brothel, including by force and blackmail. The ex-policemen and Boldyrev were charged with organizing prostitution (Part 2 of Article 241) and participating in an organized criminal group (Part 2 of Article 210), and lawyer Klimov was charged with maintaining a brothel (the same Part 2 of Article 241) and creating a criminal group ( part 1 of article 210).
Deputy of the People's Assembly of Dagestan Eduard Khidirov became involved in the case of creating a criminal community in November 2015; in August 2016, the materials were transferred to the court. In addition to the charge under Part 1 of Article 210, Khidirov, as well as his six accomplices, are charged with creating 14 front companies, illegal cash withdrawals, providing false documents and raider takeovers. According to investigators, in only two episodes (raider takeover of a bank and theft of funds from an insurance company), Deputy Khidirov and his people embezzled more than 500 million rubles.
In Tatarstan, a group of seven people, which included the head of the duty shift of the Komsomolsky Department of Internal Affairs of the city of Naberezhnye Chelny, Andrei Shchipitsyn, and four employees of the cadastral service, for nine years forcibly evicted local residents who had problems with alcohol from their apartments. The victims had accumulated large debts for housing and communal services, so they did not resist much, believing that by evicting them, the police and officials were acting on behalf of the state. People were taken out of the city, to old houses, which, as new guests “moved” there, turned into hostels, and any attempts to return to the city and contact relatives were suppressed. The vacated apartments were sold, so the group “earned” more than 20 million rubles. When a criminal case was opened in 2013, there were 30 victims.
Policeman Shchipitsyn and the employees of Rosreestr were charged under Part 3 of Article 210, since they used their official position, and the rest of the criminal community were charged under Parts 1 and 2 of the same article; in addition, they were all accused of fraud (Article 159 of the Criminal Code). In March 2021, the organizer of the group received 9.5 years, and his “right hand” received 8.5 years in prison. The policeman was sentenced to six years in a general regime colony; two of the four employees of Rosreestr were also sent to a colony.
Judicial practice shows that cases of illegal gambling, drug trafficking, and raider takeovers are often brought under Article 210. “The condition for bringing charges under Article 210 is several episodes of grave and especially grave crimes committed by an organized group that has a structure, distribution of roles, and jointly planning a crime. Three or more episodes in a group almost guarantees charges under Article 210,” says lawyer Zherebenkov.
Another comment on Art. 210 of the Criminal Code of the Russian Federation
1. The objective side consists of alternative actions described in Part 1 of the article. The independent corpus delicti is provided for in Part 2 of the article.
2. The signs of a criminal community (criminal organization) and the content of the corresponding criminal actions are disclosed in the Resolution of the Plenum of the Supreme Court of the Russian Federation dated June 10, 2010 N 12 “On the judicial practice of considering criminal cases on the organization of a criminal community (criminal organization) or participation in it (it) )".
3. The subjective side is characterized by direct intent and the presence of a goal - the commission of grave or especially grave crimes in order to obtain directly or indirectly financial or other material benefits.
Organized criminal entrepreneurs
If we consider the dynamics of the application of Article 210 over the past seven years, a noticeable decrease in the number of sentences in 2013 is striking: if since 2009, approximately 40-60 cases were initiated per year under Part 1 and 130-150 cases under Part 2, then in 2013, only 37 people were convicted under Part 1 of Article 210, and 59 people under Part 2. Two more people received sentences under Part 3 of Article 210. Then, starting in 2014, the statistics of cases of “criminal communities” brought to court again shows an increase: 56 sentenced under Part 1 and 107 convicted under Part 2 in 2014, in 2015- m - 61 and 148 people, respectively.
The business community and human rights activists believe that this statistical increase may be associated with the unlawful filing of charges under Article 210 against persons involved in so-called economic cases: fraud in the business sector, illegal banking activities, and the like. Since 2015, the Gulagu.net project has been collecting information about the illegal use of Article 210: with its help, the accused are “heavier” the charge in order to send them to a pre-trial detention center, extend the investigation period, and obtain the necessary testimony. At the same time, not all cases of organized crime reach the court unchanged: if there is no real evidence of the involvement of those arrested in a criminal community in the case, then this article is simply excluded from the final charge.
“Probably, about a third of the charges under Article 210 are overcharged,” agrees lawyer Zherebenkov. — The investigation always tries to “heavier” the charge and, for example, declares the accused who have only two elements to be a criminal community: one crime and one preparation. With such excessive imputation, civil legal relations are criminalized: all activities of the company, and not just criminal ones, are regarded as the activities of a criminal community.”
The Plenum of the Supreme Court allowed by its resolution to judge under Article 210 not only for crimes committed, but also for preparation for them, even if not a single real violation of the law was ultimately recorded. Moreover, a case can be brought for “preparation for the creation” of a criminal community itself - even if this community has not managed to either commit or prepare a single crime.
“In cases where the actions of a person aimed at creating a criminal community (criminal organization), due to their suppression by law enforcement agencies or due to other circumstances beyond the control of this person (persons), did not lead to the creation of a criminal community (criminal organization), they are subject to qualification under Part 1 or Part 3 of Article 30 of the Criminal Code of the Russian Federation and Part 1 of Article 210 of the Criminal Code of the Russian Federation as preparation for the creation or as an attempt to create a criminal community (criminal organization),” says the document adopted in 2010.
Pavel Agapov, a leading researcher at the Research Institute of the Academy of the Prosecutor General's Office of the Russian Federation, called both the article itself and the explanations given by the Supreme Court “far from legislative perfection” at a meeting with representatives of Business Russia in October of this year. The expert noted that any commercial organization became a potential target for the application of Article 210 after legislators changed the definition of an organized criminal community in 2009: in the old version of the article it was characterized as “cohesive”, in the new version the wording “structured” appeared.
Article 210. Burden of maintaining property
Ruling of the Supreme Court of the Russian Federation dated May 21, 2018 N 304-ES18-5998 in case N A70-5806/2016 In rejecting the claim, the courts were guided by Articles 210, 249, Part 7 of Article 181.4 of the Civil Code of the Russian Federation, Articles 44, 161, 162 of the Housing Code of the Russian Federation, the position of the Presidium of the Supreme Arbitration Court of the Russian Federation, set out in the resolution of July 15, 2010 N 1093/10, took into account the absentee decision of the Leninsky District Court dated October 11, 2016, as well as judicial acts in the case of the Arbitration Court of the Tyumen Region N A70-17010/2015 and proceeded from the lack of proof of the fact that the plaintiff provided services for the maintenance of common property and repairs of apartment building No. 13 on the street. Ershov in Tyumen.
Ruling of the Supreme Court of the Russian Federation dated January 18, 2019 N 307-ES18-22964 in case N A56-46062/2018
Having re-examined and assessed the evidence presented in the case, guided by the provisions of Articles 209, 210, 307 of the Civil Code of the Russian Federation, Articles 39, 155, 158, 162 of the Housing Code of the Russian Federation, Decree of the Government of the Russian Federation dated May 6, 2011 N 354 “On the provision of utility services owners and users of premises in apartment buildings and residential buildings", taking into account the terms of the agreement concluded by the parties, the appellate court supported the conclusions of the trial court that the defendant had a debt for the provided housing services for the period from 10/01/2014 to 12/31/2017 in the amount of 305 039.76 rub.
Ruling of the Supreme Court of the Russian Federation dated January 18, 2019 No. 309-KG18-22914 in case No. A76-37562/2017
In canceling the decision of the appellate court and upholding the court's decision, the cassation court was guided by Articles 209, 210, 420, 421, 431, 432, 549, 550, 551, 555 of the Civil Code of the Russian Federation and the provisions of the Tax Code of the Russian Federation. Taking into account the circumstances established by the court of first instance, including the testimony of witnesses about the work of the store in the disputed period, in their totality and interrelation, the inspection’s proof that during the disputed period the entrepreneur was the owner of the store, which was used by the entrepreneur in business activities, as well as the lack of evidence that that the store was operated by another person, the nature of the relationship with whom did not imply the taxpayer carrying out business activities, the cassation court came to the conclusion that the inspection carried out the inspection in the prescribed manner, the contested decision complied with the requirements of tax legislation.
Ruling of the Supreme Court of the Russian Federation dated January 25, 2019 N 306-ES18-23883 in case N A57-12410/2017
Canceling the decision of the court of first instance, the appellate court, guided by the provisions of Articles 210 of the Civil Code of the Russian Federation, Articles 39, 154, 156, 157, 158, 161, 162, 168, 169, 170, 174, 175 of the Housing Code of the Russian Federation, the Law on privatization of the housing stock, proceeded from the fact that the plaintiff did not provide evidence of the defendant’s failure to fulfill his obligations to carry out major repairs on the dates of the start of privatization in the disputed houses, during the period when the houses were transferred to the management of the HOA, as well as on the dates of the last privatization of premises in the houses , and therefore there are no grounds for satisfying the claims.
Ruling of the Supreme Court of the Russian Federation dated January 25, 2019 N 307-ES18-23618 in case N A56-28060/2017
When accepting the appealed judicial acts, the courts, guided by the provisions of Articles 210, 249, 1102, 1105 of the Civil Code of the Russian Federation, Articles 158, 161 of the Housing Code of the Russian Federation, Rules for the maintenance of common property in an apartment building, approved by Decree of the Government of the Russian Federation of August 13, 2006 N 491 , having examined and assessed the evidence presented in the case in accordance with Article 71 of the Arbitration Procedure Code of the Russian Federation, they recognized the claim as justified.
Determination of the Judicial Collegium for Economic Disputes of the Supreme Court of the Russian Federation dated 02/05/2019 N 305-ES18-17715 in case N A40-133857/2017
In satisfying the claims, the court of first instance was guided by Articles 210, 249, 294, 309, 310, 421, 779, 781 of the Civil Code of the Russian Federation, Articles 36, 39, 153, 155, 158, 161 of the Housing Code of the Russian Federation and proceeded from the fact that the presented in the case materials, the evidence confirms the enterprise’s acceptance of the services provided by the company for the operation and maintenance of all parking spaces owned by the enterprise, the fact that the company provided services for the operation and maintenance of the garage complex during the period stated in the claim is proven, the company fulfilled its obligations to provide operation and technical services maintenance of the garage complex, and also confirmed the performance of agency functions in order to provide parking services.
Determination of the Judicial Collegium for Economic Disputes of the Supreme Court of the Russian Federation dated 02/05/2019 N 305-ES18-18233 in case N A40-140515/2017
In satisfying the claims, the court of first instance was guided by Articles 210, 249, 294, 309, 310, 421, 779, 781 of the Civil Code of the Russian Federation, Articles 36, 39, 153, 155, 158, 161 of the Housing Code of the Russian Federation and proceeded from the fact that the presented in the evidence materials confirm the acceptance by the company of the services provided by the company for the operation and maintenance of all parking spaces owned by the enterprise, the fact that the company provided services for the operation and maintenance of the garage complex during the period stated in the claim is proven, the company has fulfilled its obligations to provide operation and maintenance services garage complex, as well as performing agency functions for the provision of parking services.
Determination of the Judicial Collegium for Economic Disputes of the Supreme Court of the Russian Federation dated 02/05/2019 N 305-ES18-18234 in case N A40-133880/2017
In satisfying the claims, the court of first instance was guided by Articles 210, 249, 294, 309, 310, 421, 779, 781 of the Civil Code of the Russian Federation, Articles 36, 39, 153, 155, 158, 161 of the Housing Code of the Russian Federation and proceeded from the fact that that the evidence presented in the materials confirms the enterprise’s acceptance of the services provided by the company for the operation and maintenance of all parking spaces owned by the enterprise, the fact that the company provided services for the operation and maintenance of the garage complex during the period stated in the claim is proven, the company fulfilled its obligations to provide operation services and maintenance of the garage complex, as well as performing agency functions in order to provide parking services.
Ruling of the Supreme Court of the Russian Federation dated 02/04/2019 N 305-ES18-24522 in case N A40-205554/2016
When accepting the appealed judicial acts, the courts of the first and appellate instances, guided by the provisions of Articles 210, 308, 385, 388, 395, 1102 of the Civil Code of the Russian Federation, Articles 39, 154, 158 of the Housing Code of the Russian Federation, proceeded from the fact that the defendant did not provide evidence payment for services rendered. The calculation of interest for the use of other people's funds has been verified by the courts and found to be correct.
Ruling of the Supreme Court of the Russian Federation dated 02/08/2019 N 308-ES18-24641 in case N A22-958/2018
When considering the dispute, the courts were guided by Articles 209, 210, 216, 296, 298, 299, 309, 310 of the Civil Code of the Russian Federation, Articles 154, 155, 158, 167, 169, 170, 181 of the Housing Code of the Russian Federation and proceeded from proof of the existence debt, as well as the responsibilities of the Russian Ministry of Internal Affairs to pay it.
Ruling of the Supreme Court of the Russian Federation dated February 22, 2019 N 306-ES18-26072 in case N A57-12284/2017
In overturning the decision of the court of first instance, the appellate court, guided by the provisions of Articles 210 of the Civil Code of the Russian Federation, Articles 39, 154, 157, 158, 161, 162, 169 of the Housing Code of the Russian Federation, proceeded from the fact that the plaintiff did not provide evidence that at the time of privatization of the specifically declared apartments in the disputed buildings, these houses were in need of major repairs, which is an independent basis for refusing the claim.
Organized criminal civil servants
“If the accused are officials or businessmen, people working in certain structures, the investigator, for several episodes, of course, charges them with Article 210 for various types of cases of financial fraud. There is a box office, roles, and a hierarchy - you don’t need to invent anything,” says Vladimir Zherebenkov.
The accused in the case of such a “structure” was one of his clients, former investigator of the Main Investigation Department of the Investigation Department of the Ministry of Internal Affairs, Sergei Kavun. According to investigators, investigator Kavun and his colleagues Evgeny Primakov and Angela Amzina illegally appropriated 44 departmental apartments and then began selling them at market prices. Amzina is considered the organizer of the criminal community; she and Primakova, in addition to fraud, are charged with receiving a bribe, and Kavun is charged with possession of a cartridge from a 9 mm pistol and a bag of marijuana, which the district police officer allegedly found on the street where the windows of the investigator’s apartment overlook.
In November 2010, the Novosibirsk Regional Court sentenced Alexander Solodkin Sr., the former president of the Novosibirsk Olympic Council, and his son Alexander Solodkin Jr., the former vice-mayor of Novosibirsk, to six and 8.5 years in prison, respectively. Father and son spent five years in a pre-trial detention center on charges of fraud, attempted murder and participation in a criminal community - the so-called Trunovsky group (after the name of one of the defendants in the case, businessman Alexander Trunov). Solodkin Sr. was released in June 2021; his son is still serving his sentence in a general regime colony.
Article 210 also appears in the scandalous case of the youngest general of the Ministry of Internal Affairs, Denis Sugrobov: the investigation believes that the former head of the Main Directorate for Economic Security and Anti-Corruption (GUEBiPK) and his deputy Boris Kolesnikov (in the summer of 2014, he, being accused, fell from the window of the Investigative Office building committee) allegedly organized a criminal community within the Ministry of Internal Affairs, consisting of their subordinates who were engaged in provoking bribes. The defense of Sugrobov and other accused insists that the police were charged with Article 210 in order to compensate with the severity of the charges for the weakness of the evidence base.
According to investigators, the leadership of the Komi Republic has also been a structured criminal community for many years: the key defendants in the so-called Gaiser case, the materials of which speak of 2.5 billion rubles stolen from the budget, have been charged under Article 210. In total, 19 people appear in the case people, including top managers of Renova and former governors - Vyacheslav Gaizer, who was arrested last fall and Vladimir Torlopov, who was sent under house arrest this fall. “This is an extraordinary event. This is a recognition that a criminal group led one of the key regions for a long time,” Ilya Shumanov, Deputy General Director of Transparency International Russia, described what was happening.
Organization of a criminal community (criminal organization) or participation in it (it)
1. Creation of a criminal community (criminal organization) for the purpose of jointly committing one or more grave or especially grave crimes, or management of such a community (organization) or its structural units, as well as coordination of criminal actions, creation of stable connections between various independent active organized groups, development of plans and creation of conditions for the commission of crimes by such groups or division of spheres of criminal influence and criminal proceeds between them, committed by a person using his influence on members of organized groups, as well as participation in a meeting of organizers, managers (leaders) or other representatives organized groups for the purpose of committing at least one of these crimes -
shall be punishable by imprisonment for a term of twelve to twenty years with a fine in the amount of up to one million rubles or in the amount of the wages or other income of the convicted person for a period of up to five years, or without it and with restrictions freedom for a term of one to two years.
2. Participation in a criminal community (criminal organization) -
shall be punishable by imprisonment for a term of five to ten years with a fine in the amount of up to five hundred thousand rubles or in the amount of the wages or other income of the convicted person for a period of up to three years, or without it and with restriction of freedom for a term of up to one year.
3. Acts provided for in parts one or two of this article, committed by a person using his official position, -
shall be punishable by imprisonment for a term of fifteen to twenty years with a fine in the amount of up to one million rubles or in the amount of the wages or other income of the convicted person for a period of up to five years, or without it, and with restriction of freedom for a term of one to two years.
4. Acts provided for in part one of this article, committed by a person occupying a higher position in the criminal hierarchy -
shall be punished by imprisonment for a term of fifteen to twenty years or life imprisonment.
Note.
A person who voluntarily ceased participation in a criminal community (criminal organization) or a structural unit included in it (it) or a meeting of organizers, managers (leaders) or other representatives of organized groups and actively contributed to the disclosure or suppression of these crimes is exempt from criminal liability if his actions do not contain any other crime.
