1. Hooliganism, that is, a gross violation of public order, expressing clear disrespect for society, committed:
a) with the use of violence against citizens or the threat of its use;
b) for reasons of political, ideological, racial, national or religious hatred or enmity, or for reasons of hatred or enmity towards any social group;
c) on railway, sea, inland water or air transport, as well as on any other public transport, -
shall be punishable by a fine in the amount of three hundred thousand to five hundred thousand rubles, or in the amount of the wages or other income of the convicted person for a period of two to three years, or by compulsory labor for a term of up to four hundred eighty hours, or by corrective labor for a term of one to two years, or forced labor for a term of up to five years, or imprisonment for the same period.
2. The same act committed with the use of weapons or objects used as weapons, or by a group of persons, a group of persons by prior conspiracy or an organized group, or associated with resistance to a government official or other person performing duties to protect public order or suppressing a violation of public order order -
shall be punishable by a fine in the amount of five hundred thousand to one million rubles, or in the amount of the wages or other income of the convicted person for a period of three to four years, or by forced labor for a term of up to five years, or by imprisonment for a term of up to seven years.
3. Acts provided for in parts one or two of this article, committed with the use of explosives or explosive devices, -
shall be punished by imprisonment for a term of five to eight years.
Commentary to Art. 213 of the Criminal Code of the Russian Federation
1. The social danger of a crime is that when there is an attack on public order, human rights, health, honor, dignity, peace of citizens, their living conditions, work and rest, the interests of enterprises, organizations, institutions, transport, etc. can be significantly violated .
2. The concept of hooliganism, its signs, methods of commission, differences from other similar crimes are given in the Post. Plenum of the Armed Forces of the Russian Federation dated November 15, 2007 N 45.
3. Hooliganism consists of a gross violation of public order, expressing clear disrespect for society, involving the use of weapons or objects used as weapons, as a specific method of action of the guilty person, or based on political, ideological, racial, national or religious hatred or enmity in relation to any social group, or on railway, sea, inland water or air transport, as well as on any other public transport. If, during hooliganism, harm is caused to the health of the victim without the use of weapons or objects used as weapons, or the perpetrator does not act out of political, ideological, racial, national or religious hatred or hostility towards any social group, or not on the railway , sea, inland water or air transport, as well as on any other public transport, then the act may be qualified as a crime against a person for hooligan motives under an article of the Criminal Code of the Russian Federation, in which this circumstance is a qualifying feature (for example, paragraph “d” Part 2 of Article 111, paragraph “e” of Part 2 of Article 112, paragraph “a” of Part 2 of Article 115 of the Criminal Code, etc.), or as petty hooliganism (Article 20.1 of the Administrative Code).
4. The object of the crime is public order. Public order should be understood as a system, a complex of relationships between people, rules of conduct, community life established by regulations, morality, customs, traditions that ensure an environment of public peace, personal security in various spheres of life, personal integrity, integrity of property, normal functioning of state and public institutions.
An additional object of the crime may be the health, honor, dignity, and bodily integrity of citizens, including government officials suppressing violations of public order.
5. The objective side of hooliganism is expressed in a gross violation of public order, expressing clear disrespect for society, committed: a) with the use of weapons or objects used as weapons; b) based on political, ideological, racial, national or religious hatred or hostility towards any social group; c) on railway, sea, inland water or air transport, as well as on any other public transport.
Recognizing a violation of public order as “gross” is a matter of fact, since this sign is evaluative and is associated with the nature of the actions of the guilty person. When resolving this issue, one should take into account the method, time, place of committing hooligan acts, as well as their intensity, duration and other circumstances. Such actions can be committed both in relation to a specific person and in relation to an indefinite number of persons. Obvious disrespect for society as a sign characterizing the internal essence of the actions of a guilty person is expressed in a deliberate violation of generally accepted norms and rules of behavior, morality, dictated by the desire of the guilty person to demonstratively oppose himself to the people around him, to demonstrate a disdainful attitude towards them, to show brute force, violence.
6. The use of weapons or other objects used as weapons means deliberate actions aimed at a person using these objects for both physical and mental influence on the victim, as well as other actions indicating an intention to use violence using these weapons or objects used as weapons, as a result of which public order is grossly violated, intentional or careless harm is caused to the life and (or) health of people, and a threat of harm to the health of the victim is created.
Weapons are understood as any devices and objects that are structurally designed to hit a living target - firearms, cold steel, throwing, gas, pneumatic, other home-made and factory-made weapons that meet the requirements of the Weapons Law (see commentary to Articles 222 - 223 ).
Objects used as weapons in the commission of hooliganism are understood as any material objects that have the qualities of a weapon, which, based on their properties, can cause harm to human health, as specially prepared or adapted, selected on the spot or brought with you for this purpose, for example . a stone, a piece of reinforcement or cable, a chain, a stick, a baseball bat, etc., as well as household items, for example. hammer, axe, saw, crowbar, pitchfork, shovel, scythe, etc. (see also commentary to part 2 of article 162 of the Criminal Code of the Russian Federation, clause 23 of the Post. Plenum of the Armed Forces of the Russian Federation dated December 27, 2002 N 29).
In cases where, in the process of committing hooliganism, a person uses animals that pose a danger to human life or health, the act, taking into account the specific circumstances of the case, can be qualified as hooliganism.
The use of unloaded, faulty, unusable weapons (for example, training weapons) or decorative, souvenir, toy weapons, etc. in the course of committing hooliganism. gives grounds for qualifying the act as hooliganism with the use of objects used as weapons.
Subject to a gross violation of public order, shooting from a firearm at night in a populated area or in another place not designated for such purposes constitutes hooliganism. If such a condition is absent, then the person’s actions are considered an administrative offense under Art. 20.13 Code of Administrative Offences.
For example, the criminal case was dropped against O., who asked three men drinking alcohol to stop making noise near the windows of his apartment and to remove the car; Hearing obscene language in response, O. took a hunting rifle, a knife and went out into the street, believing that when they saw the weapon, they would stop their actions. On the street, he once again repeated his demand, but there was no reaction, he fired the gun twice at side of the car, two ran away. ——————————— BVS of the Russian Federation. 2005. N 5. P. 29.
7. Hooliganism does not contain such a sign of the objective side of the crime as the use of violence (causing harm to human health of varying degrees of severity), therefore, in cases where, in the process of committing hooliganism, the victim, as well as the person performing duties to protect public order or suppressing hooliganism, beatings have been inflicted or harm to health of varying degrees of severity has been caused, the act must be qualified according to the totality of crimes provided for in the commented article and the corresponding article of the Criminal Code of the Russian Federation, which provides for liability for a crime against the person.
Intentional destruction or damage to someone else's property for hooligan reasons and resulting in significant damage should be qualified under Part 2 of Art. 167 of the Criminal Code of the Russian Federation, and in cases where a person, in addition to this, commits other deliberate actions that grossly violate public order, expressing clear disrespect for society, for example. with the use of weapons or objects used as weapons against an individual, what he has done must be qualified in conjunction with the commented article.
8. The place where hooliganism is committed can be both public places (street, transport, club, cinema, cafe, restaurant, park, office, etc.) and rarely visited, deserted places (country road, forest, field, wasteland, landfill etc.), and according to paragraph “c” of Part 1 of the commented article - railway, sea, inland water or air transport, as well as any other public transport (see the commentary on transport to Article 211, 263, 264). It is important that the actions of the guilty person were committed out of hooligan motives, involving a gross violation of public order, and expressing clear disrespect for society, and not out of personal hostility.
For example, in the case of D. and G., their conviction for hooliganism committed on the river bank in the absence of citizens was recognized as justified. Using a minor excuse, expressed in Sh.’s refusal to provide cigarettes, they first beat him with their hands and feet, then, alternately threatening him with a knife, forced him to eat chemical powder found on the spot, and then D., succumbing to G.’s persuasion, struck the victim Sh. stab in the back. ——————————— BVS of the Russian Federation. 2009. N 8. P. 20.
The preamble of the European Convention of 19.08.1985 on the Prevention of Violence and Disorderly Conduct by Spectators during Sports Events and, in Particular, Football Matches, notes that countries are concerned about violence and disorderly conduct by spectators during sporting events, and that in fact violence is a large-scale social phenomenon our days. ——————————— See: BIA. 2000. N 1. S. 8 - 22.
9. Hooliganism is a formal crime, recognized as completed from the moment of committing actions that grossly violate public order and express clear disrespect for society, committed with the use of weapons or objects used as weapons, or for political, ideological, racial, national or religious hatred or hostility towards any social group, or in railway, sea, inland water or air transport, as well as in any other public transport.
10. From the subjective side, the crime is characterized by direct intent: the person realizes that he is grossly violating public order, showing clear disrespect for society, that he is using weapons or objects used as weapons, or for reasons of political, ideological, racial, national or religious hatred, or hostility towards any social group, or on railway, sea, inland water or air transport, as well as on any other public transport, and wishes to commit these actions.
11. A mandatory sign of a crime is a hooligan motive, with the exception of hooliganism for extremist reasons (clause “b”, part 1, article 213 of the Criminal Code of the Russian Federation), which also applies to crimes of an extremist nature (clause 2 of the Post. Plenum of the Armed Forces of the Russian Federation of June 28. 2011 N 11).
Criminally punishable acts committed out of hooligan motives should be understood as deliberate actions directed against a person’s person or his property, which were committed without any reason or using an insignificant reason, disproportionate to the violence committed and caused, for example. the victim’s refusal to the hooligan’s request to let him smoke, to give up his seat on public transport, an accidental push, an incorrect, in the hooligan’s opinion, look at him from the victim or what he considers an unfair remark made to him, etc.
Actions of a person committed on the basis of personal hostile relationships are also classified as hooliganism if they are committed in a public place and if the perpetrator is aware that his actions grossly violate public order.
If the intent to violate public order is not established, then there is no element of hooliganism.
For example, it was recognized that M.’s actions, in the absence of intent to violate public order, were erroneously classified as hooliganism. The convict and his wife were looking for a missing calf in their car and drove into a beet field, where their car stalled. M. was trying to fix the problem in order to leave, at which time a drunken security guard K. approached him and began to drive him away. M. hit K. on the head with an unidentified object and pushed him, then another guard, who was also intoxicated, approached and demanded that M. leave; he threw beets at him. M.’s actions were qualified in relation to K. under Art. 115 of the Criminal Code of the Russian Federation, and in relation to the second security guard under Art. 116 CC. ——————————— BVS of the Russian Federation. 2003. N 6. P. 5.
In E.’s case, it was recognized that the actions of a person committed out of personal hostility were unreasonably classified as hooliganism. On the street, in full view of strangers, he hit his former partner on the head with adjustable wrenches and struck her with his knee several times in the chest and face, causing moderate harm to her health. Regarding the conviction under Part 3 of Art. 213 of the Criminal Code, the verdict was overturned, the case was dismissed due to the lack of corpus delicti in the actions, and the actions under paragraph “e”, part 2 of Art. 112 of the Criminal Code have been reclassified to Part 1 of Art. 112 CC. ——————————— BVS of the Russian Federation. 2003. N 5. P. 11.
In L.’s case, it was recognized that the court erroneously classified his actions as hooliganism, the sentence was overturned, and the case under Part 3 of Art. 213 of the Criminal Code has been terminated. The court's conclusion that L. committed hooliganism was erroneous; the convict had no intention of grossly violating public order, and through his actions used violence against victims R. and K. out of hostility, mistaking them for persons involved in selling drugs to his friend. ——————————— BVS of the Russian Federation. 2002. N 11. P. 11.
12. The subject of the crime provided for in Part 1 of the commented article is a sane individual who has reached the age of 16.
13. Part 2 of the commented article includes among the qualifying signs of hooliganism the same acts committed by a group of persons by prior conspiracy or by an organized group or associated with resistance to a government official or other person performing duties to protect public order or suppressing a violation of public order.
When qualifying the actions of the perpetrator as hooliganism committed by a group of persons by prior conspiracy, it is necessary to proceed from the requirements of Part 2 of Art. 35 of the Criminal Code of the Russian Federation. When resolving this issue, it should be borne in mind that a preliminary agreement must be reached not only on the commission of joint hooligan actions, but also on the use of weapons or objects used as weapons, or on the commission of such actions for political, ideological, racial, national reasons. or religious hatred or enmity or based on hatred or enmity against any social group by any of the accomplices. It does not matter whether all persons who agreed to commit such a crime used weapons or objects used as weapons.
For example, in the case of A., the qualifying sign of hooliganism “using a knife used as a weapon” was excluded from the sentence. It was established that A. committed hooligan acts against the victim K. together with the convicted person in the case G., who was the initiator, he also had a knife that he used in the commission of the crime. Convict A. did not take or use the knife; he had no prior agreement with G. on its use. ——————————— BVS of the Russian Federation. 2003. N 11. P. 22.
14. Resistance to a government official or other person performing duties to protect public order is understood as active opposition to the performance of their official or public duty, deliberate actions of a person to overcome the legal actions of these persons, as well as the actions of other citizens suppressing a violation of public order, for example. when detaining a person committing hooliganism, disarming him, restraining him or otherwise preventing the continuation of hooliganism, an attempt by a hooligan to break free from the persons detaining him, tying them up, restricting their freedom, using violence against them.
Hooligan actions associated with resistance to a representative of the authorities, during which violence, non-dangerous or dangerous to life and health, was used, should be classified as a set of crimes provided for in Part 2 of Art. 213 and the corresponding part of Art. 318 of the Criminal Code of the Russian Federation.
If the perpetrator, while resisting a person performing duties to protect public order or suppressing a violation of public order, intentionally caused moderate or serious harm to health or committed the murder of such a person, then the act, if there are grounds for it, should be classified as a set of crimes provided for in Part 2 of the commented article and, accordingly, paragraph “b” of Part 2 of Art. 112, paragraph “a”, part 2, art. 111 or clause “b”, part 2 of Art. 105 of the Criminal Code of the Russian Federation.
In cases where resistance to a representative of the authorities is offered by a person after the cessation of hooligan actions, in particular in connection with subsequent arrest, his actions should not be considered as a qualifying circumstance of hooliganism and are subject to qualification under the totality of crimes provided for in Part 1 of Art. 213 and the corresponding article of the Criminal Code of the Russian Federation, which provides for liability for the crime committed.
For example, in the case of D., it was recognized that the court reasonably qualified the actions of the convicted person for a set of crimes as hooliganism committed with the use of objects used as weapons (part 3 of article 213 of the Criminal Code - at the present time, paragraph “a”, part 1 Article 213 of the Criminal Code of the Russian Federation), and the use of violence dangerous to health against a representative of the authorities (Part 2 of Article 318 of the Criminal Code of the Russian Federation). It was established that D., while committing hooligan acts, resisted a representative of the authorities - police officer V., hit him on the head with a hammer, causing slight harm to his health, i.e. used violence dangerous to the health of the victim. Within the meaning of Art. 213 of the Criminal Code of the Russian Federation, if during the commission of hooliganism associated with resistance to a representative of the authorities, violence dangerous to health was used, then it (depending on the specific circumstances) must be additionally qualified under Art. Art. 317 or 318 CC. ——————————— BVS of the Russian Federation. 1999. N 1. P. 16.
15. The suppression of violations of public order should be understood not only as the direct use of physical force against a person committing hooliganism, but also other active actions, for example. calling the police, protecting the victim from beating, etc., and not just exhortations or requests to the bully to stop illegal behavior.
16. In accordance with note. to Art. 318 of the Criminal Code, a representative of the authorities is recognized as an official of a law enforcement or regulatory body, as well as another official vested with administrative powers in relation to persons who are not officially dependent on him in accordance with the procedure established by law.
According to clause 3 of the Post. Plenum of the Armed Forces of the Russian Federation dated October 16, 2009 No. 19, persons vested with the rights and responsibilities for exercising the functions of legislative, executive or judicial authorities should be considered as performing the functions of government representatives, and also, based on the content of the notes. to Art. 318 of the Criminal Code of the Russian Federation, other persons of law enforcement or regulatory authorities vested in the manner prescribed by law with administrative powers in relation to persons who are not officially dependent on them, or the right to make decisions binding on citizens, organizations, institutions, regardless of their departmental affiliation and forms property.
These include prosecutors, investigators, persons conducting inquiries and carrying out operational investigations, employees of the internal affairs department, counterintelligence, state security, control, customs authorities, supervision and other persons.
17. Other persons performing duties for the protection of public order or suppressing violations of public order are understood to mean military personnel, persons engaged in private detective and security activities, involved in the protection of public safety and public order, officials of local government bodies who, by special authority of the body Local governments carry out functions to protect public order. Other persons suppressing violations of public order are understood as persons, although not vested with any powers, but participating in preventive actions on their own initiative.
The content of the intent of the perpetrator when committing hooligan acts involving resistance includes the awareness that the victim is a representative of the authorities or another person performing duties to protect public order or suppressing a violation of public order.
18. Part 3 of the commented article includes among the specially qualifying grounds of hooliganism the acts provided for in part 1 or 2 of this article, committed with the use of explosives or explosive devices (see the commentary on such substances and objects to Articles 222.1, 223.1).
19. The subject of the crime provided for in Part 2 or Part 3 of the commented article is a sane individual who has reached the age of 14.
Case plot:
A citizen asked for legal assistance and explained that a criminal case had been opened against him under Part 2 of Art. 213 of the Criminal Code of the Russian Federation, that is, hooliganism committed by a group of persons by prior conspiracy. After reviewing the documents and discussing the situation, it was established that the following circumstances served as the reason for initiating a criminal case.
One autumn day, the trustee arrived at a nightclub, where he met his acquaintances at the entrance, he greeted them and went inside the club. However, the client did not pass the so-called “face control” and was forced to go back outside. Once on the street, he saw his acquaintances being beaten by the club’s security guards, and my client also came under the hot hand, as a result of which he was severely beaten.
The police arrived, everyone who was beaten was asked: “Are you going to write a statement about the beating?” To which everyone unanimously refused, the police left. Moving a little away from the club, the trustee saw his beaten acquaintances and asked what happened? Why were they beaten and him? No one could really explain anything.
The client tried to call his acquaintances, asked them to pick him up, so he kept going away and then approached his acquaintances again, moving around the surrounding area and talking on the phone.
At some point, two of the standing guys decided to return to the club and find out the reason for the beating. To prevent them from being beaten again, they took two sticks for their protection. Approaching the club, the guards began to hold the door from the inside to prevent the indicated guys from entering, they, in turn, began to strike with sticks and broke the glass door of the club.
Hearing the screams of their friends, the previously beaten guys standing nearby decided that their comrades were being beaten again by the guards and ran towards the entrance to the club, some of them ran inside through the broken door.
My client at that moment was not far from the club, but did not go inside the premises.
The club's security guards, apparently frightened by the current situation, sprayed tear gas inside the club, after which the guys who ran into the club ran out. The police arrived again, collected explanations from everyone, the guys who broke the door compensated the owner of the establishment for the damage caused, everything seemed to be resolved peacefully, the police left, but a few days later a criminal case was opened against the guys, including my client, under Part 2 of Art. 213 of the Criminal Code of the Russian Federation.
Judicial practice: sentences and punishment under Art. 213 of the Criminal Code of the Russian Federation
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