The Plenum of the Supreme Court published a draft Resolution on amending certain decisions of the Plenum of the RF Armed Forces on criminal cases.
The amendments are due to changes in legislation and issues arising during the consideration of cases.
“On the application by courts of a special procedure for the trial of criminal cases”
As for the procedure for considering a case in a special manner, the Plenum indicates that the court is obliged to make sure that the public prosecutor (prosecutor), private prosecutor and (or) the victim, if he is participating in the case, have no objections to the petition filed by the accused. It should be taken into account that disagreement with the defendant’s request, expressed by at least one of the named persons, regardless of the motives for the objections, is grounds for a trial in the general manner.
The Plenum also emphasizes that consideration of a criminal case in a special manner does not relieve the court of the obligation to investigate issues related to the civil claim and make a decision on it. In particular, when rendering a verdict of guilty, the court has the right to satisfy a civil claim if its requirements arise from the accusation with which the accused agreed, and there are no obstacles to the court’s resolution of it on the merits. If there are appropriate grounds, a civil claim may be left without consideration, proceedings on it may be terminated, its satisfaction may be refused, or a decision may be made to transfer the claim to consideration in civil proceedings.
Attention is also drawn to the fact that the Court, when re-examining a case, including in the general procedure of judicial proceedings, does not have the right to assign a more severe punishment to the convicted person in cases where the sentence, passed according to the rules of Chapter 40 of the Code of Criminal Procedure of the Russian Federation, is canceled by a higher court on the grounds , not related to the deterioration of the situation of the convicted person.
The Supreme Court dealt with economic crimes
Today the Plenum of the Supreme Court of the Russian Federation adopted the Resolution “On judicial practice in cases of fraud, misappropriation and embezzlement.” Let us remind you that the draft document was considered on November 14, but it was sent for revision, as a result of which minor editorial and technical corrections were made to the text. In addition, the resolution was supplemented by paragraph 34, indicating that if the actions of a person during fraud, embezzlement or embezzlement, although formally containing signs of the specified crime, but due to their insignificance did not pose a public danger, then the court should terminate the criminal case on the basis of Part 2 of Art. . 14 of the Criminal Code of the Russian Federation.
Earlier, the lawyer of the Moscow AP, Valery Sarkisov, noted that since the adoption of the Resolution of the Plenum of the Supreme Court of the Russian Federation of December 27, 2007 No. 51 “On judicial practice in cases of fraud, misappropriation and embezzlement,” criminal legislation has changed, new forms and types of fraud have arisen, Thefts using electronic means of payment became widespread, questions arose related to the qualification of acts, as well as the distinction between fraud and related offenses, which required clarification from the highest judicial body.
The expert also noted that the new clarifications for the first time pay attention to the issues of qualification of certain types of fraud under Art. 159.1, 159.2, 159.3, 159.5 and 159.6 of the Criminal Code of the Russian Federation, which appeared after the adoption of the previous resolution of the Supreme Court of the Russian Federation. He added that the issue of ensuring uniformity in the practice of applying these provisions has been long overdue, so certainty in their interpretation is especially significant.
It is worth noting that the Plenum of the RF Armed Forces approved the second version of clause 5 of the resolution, indicating that if the subject of the crime in fraud is non-cash funds, including electronic funds, then within the meaning of the provisions of clause 1 of the notes to Art. 158 of the Criminal Code of the Russian Federation and Art. 128 of the Civil Code of the Russian Federation, what was done should be considered as theft of someone else’s property. Such a crime should be considered completed from the moment of withdrawal of funds from the bank account of their owner or electronic funds, as a result of which damage was caused to the owner of these funds.
Earlier, regarding the question of when the fraud ended, Mikhail Kiriyenko, a partner at Kovalev, Ryazantsev and Partners, noted that such wording is categorically unacceptable. This approach, according to the expert, contradicts the concept of theft, since seizure itself does not make it possible to use and dispose of someone else’s property. He explained: “It seems that this is an option for operational services. If this approach remains, it will be a change in the criminal law norm through the interpretation of the RF Armed Forces, which is both unreasonable and increases the punitive component of Art. 159 of the Criminal Code of the Russian Federation.”
Managing partner of Zabeida and Partners, Alexander Zabeida, pointed out in this regard that, most likely, the decree refers to cryptocurrencies by electronic money. Since the legal nature of this type of property currently has no legal definition, cryptocurrency is difficult to classify as electronic money. According to the lawyer, from a criminal point of view it can be attributed rather to another type of property or the right to such property.
The lawyer also noted that the crypto wallet has no territorial connection. “It represents part of the encrypted key. This key provides the ability to manage cryptocurrency, information about which is available in the distributed registry, and therefore any information about a transaction, for example, transferring cryptocurrency to another wallet, appears simultaneously on all computers that embed data about the transaction in the block chain, the expert explained. “There are many places where the crime was committed in this case.”
At the same time, Valery Sarkisov pointed out that the draft resolution adopted today does not contain the position of the Plenum of the RF Armed Forces regarding how exactly actions in relation to non-cash funds should be qualified. Pointing out that they are thefts, the Court does not say anything about which article of the Criminal Code of the Russian Federation they should be classified under, despite the fact that practice has developed a relatively uniform approach to resolving this issue.
Clause 6 of the resolution, proposed in the draft in two versions, was also defined. In accordance with the adopted document, the place where the crime ended in cases where the subject of fraud was non-cash funds must be considered the location of the bank (its branch) or other organization in which the owner of the funds opened a bank account or kept records of electronic funds without opening accounts. Based on this, the courts must decide the issue of territorial jurisdiction of a criminal case.
“On forensic examination in criminal cases”
As a small reminder, the RF Supreme Court added that the questions posed to the expert and the conclusion on them cannot go beyond the scope of his special knowledge. In addition, the expert cannot be asked questions about assessing the reliability of the testimony of a suspect, accused, victim or witness obtained during an interrogation, confrontation and other investigative actions, including using audio or video recordings.
The Plenum also spoke about the re-examination: “According to Part 2 of Article 207 and Part 4 of Article 283 of the Code of Criminal Procedure of the Russian Federation, if doubts arise about the validity of an expert’s conclusion or if there are contradictions in the conclusions of experts on the same issues that cannot be overcome in court proceedings by questioning experts, the Plenum may a re-examination will be ordered, the production of which will be entrusted to another expert.”
Plenum of the Supreme Court on judicial practice in cases of fraud, misappropriation and embezzlement
Resolution of the Plenum of the Supreme Court of the Russian Federation dated November 30, 2017 N 48 “On judicial practice in cases of fraud, misappropriation and embezzlement” Explanations of judicial practice for courts in cases of fraud, misappropriation and embezzlement have been updated
The Resolution contains new clarifications, including in connection with the inclusion in the Criminal Code of the Russian Federation of new articles providing for liability for fraud in the field of lending, when receiving payments, fraud using payment cards, in the field of insurance and computer information.
In particular, the Plenum of the Supreme Court of the Russian Federation gave the following explanations:
in cases where a person receives someone else’s property or acquires the right to it, without intending to fulfill the obligations associated with the terms of the transfer of said property or right to him, as a result of which the victim suffers material damage, the act should be qualified as fraud if the intent is aimed at theft of someone else's property or acquisition of the right to someone else's property, arose in a person before receiving someone else's property or the right to it;
if, as a result of fraud, a citizen lost the right to residential premises, then the actions of the perpetrator should be qualified under Part 4 of Article 159 of the Criminal Code of the Russian Federation, regardless of whether this residential premises was the only one the victim had and/or whether the victim used it for his own residence;
fraud associated with deliberate failure to fulfill contractual obligations in the field of business activity is recognized as a criminal offense if this act resulted in damage to an individual entrepreneur or commercial organization in the amount of ten thousand rubles or more;
deception when committing fraud in the field of lending consists of providing the lender with knowingly false or unreliable information about the circumstances, the presence of which is provided by the lender as a condition for granting a loan (for example, information about the place of work, income, financial condition of an individual entrepreneur or organization, the presence of outstanding accounts payable , about the property that is the subject of the pledge);
interference in the functioning of means of storing, processing or transmitting computer information or information and telecommunication networks is recognized as the purposeful impact of software or software and hardware on servers, computers (computers), including portable ones - laptops, tablet computers, smartphones, equipped with appropriate software, or on information and telecommunication networks, which violates the established process of processing, storing, transmitting computer information, which allows the culprit or another person to illegally take possession of someone else’s property or acquire the right to it.
Resolution of the Plenum of the Supreme Court of the Russian Federation dated December 27, 2007 N 51 was declared invalid.
Resolution of the Plenum of the Supreme Court of the Russian Federation dated November 30, 2017 N 48 “On judicial practice in cases of fraud, misappropriation and embezzlement”
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In order to ensure uniform and correct application of legislation on criminal liability for crimes against property, in particular fraud, embezzlement and embezzlement, and in connection with issues that have arisen in judicial practice, the Plenum of the Supreme Court of the Donetsk People's Republic
DECIDES
provide the courts with the following explanations:
1. Draw the attention of the courts to the fact that, unlike other forms of theft provided for by Chapter 21 of the Criminal Code of the Donetsk People's Republic, fraud is committed by deception or abuse of trust, under the influence of which the owner of the property or another person or an authorized authority transfers property or the right to it other persons or do not prevent the seizure of this property or the acquisition of rights to it by other persons.
2. Deception as a method of committing theft or acquiring the right to someone else’s property, liability for which is provided for in Article 165 of the Criminal Code of the Donetsk People’s Republic, may consist of deliberately reporting false information that does not correspond to reality, or in silence about true facts, or in deliberate actions (for example , in the provision of counterfeit goods or other subject of a transaction, the use of various deceptive techniques when paying for goods or services or when gambling, in simulating cash transactions, etc.), aimed at misleading the owner of the property or another person.
False information reported during fraud (or information that is kept silent) can relate to any circumstances, in particular to legal facts and events, quality, value of property, the identity of the perpetrator, his powers, intentions.
3. Abuse of trust in fraud consists of using, for personal gain, a trust relationship with the owner of property or another person authorized to make decisions on the transfer of this property to third parties. Trust can be conditioned by various circumstances, for example, the official position of a person or the personal or family relationship of a person with the victim.
Abuse of trust also occurs in cases where a person assumes obligations when he obviously has no intention of fulfilling them for the purpose of freely using someone else’s property for his own benefit or for the benefit of third parties or acquiring the right to it (for example, an individual receiving a loan, an advance for the performance of works, services, prepayment for the supply of goods, if it did not intend to repay the debt or otherwise fulfill its obligations).
4. Fraud, that is, the theft of someone else’s property, committed by deception or abuse of trust, is considered completed from the moment when the said property came into the illegal possession of the culprit or other persons and they received a real opportunity (depending on the consumer properties of this property) to use or dispose of it them at their own discretion.
If fraud is committed in the form of acquiring the right to someone else’s property, the crime is considered completed from the moment the perpetrator has a legally secured opportunity to take possession or dispose of someone else’s property as his own (in particular, from the moment of registration of ownership of real estate or other rights to property subject to such registration in accordance with the law; from the time of conclusion of the agreement; from the moment of making the endorsement (endorsement) on the bill; from the date of entry into force of the court decision, which recognizes the right to property for a person, or from the date of adoption of another legal decision by authorized authorities or by a person misled as to whether the perpetrator or other persons have legal grounds for owning, using or disposing of property).
5. In cases where a person receives someone else’s property or acquires the right to it, without intending to fulfill the obligations associated with the conditions for the transfer of said property or right to him, as a result of which the victim suffers material damage, the act should be qualified as fraud, if the intent, aimed at stealing someone else's property or acquiring the right to someone else's property, arose in a person before receiving someone else's property or the right to it.
The presence of intent to steal may be evidenced, in particular, by the person’s deliberate lack of real financial ability to fulfill the obligation or the necessary license to carry out activities aimed at fulfilling his obligations under the contract, the person’s use of fictitious statutory documents or fake letters of guarantee, concealment of information about the presence of debts and pledges of property, the creation of false enterprises acting as one of the parties to the transaction.
Courts should take into account that these circumstances in themselves cannot prejudge the court’s conclusions about a person’s guilt in committing fraud. In each specific case, it is necessary, taking into account all the circumstances of the case, to establish that the person obviously did not intend to fulfill his obligations.
6. The theft of someone else’s property or the acquisition of the right to it by deception or abuse of trust, committed using an official document forged by this person, granting rights or releasing from obligations, is qualified as a set of crimes provided for in part 1 of article 386 of the Criminal Code of the Donetsk People’s Republic and the corresponding part of the article 165 of the Criminal Code of the Donetsk People's Republic.
If a person forged an official document, but due to circumstances beyond his control did not actually use this document, the act should be qualified under Part 1 of Article 386 of the Criminal Code of the Donetsk People's Republic. The act must be qualified in accordance with Part 1 of Article 29 of the Criminal Code of the Donetsk People's Republic as preparation for fraud, if the circumstances of the case indicate that the intent of the person included the use of a forged document to commit crimes provided for in Part 3 or Part 4 of Article 165 of the Criminal Code of the Donetsk People's Republic .
In the event that a person used a forged document he himself produced for the purpose of stealing someone else’s property by deception or abuse of trust, but due to circumstances beyond his control, was unable to seize the victim’s property or acquire the right to someone else’s property, the act should be qualified as a set of crimes provided for Part 1 of Article 386 of the Criminal Code of the Donetsk People's Republic, as well as Part 3 of Article 29 of the Criminal Code of the Donetsk People's Republic and, depending on the circumstances of a particular case, the corresponding part of Article 165 of the Criminal Code of the Donetsk People's Republic.
7. Theft by a person of someone else’s property or the acquisition of the right to it by deception or abuse of trust, committed using a forged official document produced by another person, is fully covered by fraud and does not require additional qualifications under Article 386 of the Criminal Code of the Donetsk People’s Republic.
8. In cases of creating a commercial organization without the intention of actually carrying out business or banking activities, with the goal of stealing someone else’s property or acquiring the right to it, the act is fully covered by fraud.
9. The objective side of the crime provided for in Article 184 of the Criminal Code of the Donetsk People’s Republic is illegal entrepreneurship, that is, independent activity carried out at one’s own risk, aimed at systematically making a profit from the use of property, sale of goods, performance of work or provision of services by persons not registered in as subjects of such activities or in violation of established rules. The main direct object of this crime is public relations in the field of business activity, and an additional object is the protected interests of citizens, society and the state. In turn, the subject of the crime provided for in Article 165 of the Criminal Code of the Donetsk People’s Republic is property, as well as the right to someone else’s property (as a legal category). In this regard, in the case of carrying out illegal business activities by manufacturing and selling counterfeit goods under the guise of genuine ones, this person not only deceives consumers of these products, but also violates the established rules for carrying out business activities. These actions form an ideal set of crimes, and therefore they must be qualified as a set of crimes provided for in the relevant parts of Articles 165 and 184 of the Criminal Code of the Donetsk People's Republic.
If a person carries out illegal business activities by manufacturing and selling counterfeit goods, for example, alcohol-containing drinks, medicines, under the guise of genuine ones, deceiving consumers of these products regarding the quality and other characteristics of the goods that affect its cost, the act constitutes fraud and additional qualifications under Article 184 of the Criminal Code The Donetsk People's Republic does not require. In cases where these actions are related to the production, storage or transportation for the purpose of distribution or sale of counterfeit goods that do not meet the requirements for the safety of life or health of consumers, the act constitutes a set of crimes provided for in the relevant parts of Articles 165 and 277 of the Criminal Code of the Donetsk People's Republic.
10. The secret theft of bearer securities, that is, such securities for which the right certified by them can be exercised by any holder (bond, bill, share, bearer bank savings book or other documents classified by law as valuable) does not constitute fraud. papers). What was done in these cases should be qualified as theft of someone else's property.
The subsequent exercise of rights certified by secretly stolen bearer securities (that is, receipt of funds or other property) constitutes the disposal of stolen property and does not require additional qualification as theft or fraud.
11. Actions consisting of illegally receiving social payments and benefits, money transfers, bank deposits or other property on the basis of someone else’s personal or other documents (for example, a pension certificate, a child’s birth certificate, a bank savings book in which the name of its owner is indicated, or other registered security) are subject to qualification under Article 165 of the Criminal Code of the Donetsk People's Republic as fraud by deception.
If the perpetrator of these documents was previously stolen, then his actions must be additionally qualified under Part 1 of Article 384 of the Criminal Code of the Donetsk People's Republic (if an official document is stolen) or under Part 2 of this article (if a passport or other important personal document is stolen).
Just like the theft of someone else's property in the form of fraud, it is necessary to evaluate actions consisting of receiving social payments and benefits, other monetary payments (for example, compensation provided by law, insurance premiums) or other property by submitting to executive authorities, institutions or organizations authorized to accept the relevant decisions, knowingly false information about the existence of circumstances, the occurrence of which, according to the law, regulations and (or) agreement, is a condition for receiving appropriate payments or other property (in particular, about the identity of the recipient, disability, presence of dependents, participation in hostilities, lack of opportunity employment, the occurrence of an insured event), as well as by keeping silent about the termination of the grounds for receiving the specified payments.
12. The gratuitous circulation by a person in his own favor or in favor of other persons of funds held in bank accounts, committed for mercenary purposes through deception or abuse of trust (for example, by submitting fake payment orders to a bank, concluding a loan agreement under the condition of loan repayment, which the person does not intend to fulfill).
In accordance with Article 1087 of the Civil Code of Ukraine, payments on the territory of the Donetsk People's Republic are made by cash and non-cash payments, that is, money in bank accounts can be used as a means of payment.
Based on this, from the moment money is credited to a person’s bank account, he receives a real opportunity to dispose of the received funds at his own discretion, for example, to make payments on his own behalf or on behalf of third parties, without withdrawing funds from the account to which they were transferred in as a result of fraud. In these cases, the crime should be considered completed from the moment these funds are credited to the account of the person who, through deception or abuse of trust, withdrew the funds from the account of their owner, or to the accounts of other persons to which the stolen funds were received as a result of the criminal actions of the perpetrator.
In cases where these acts involve unlawful intrusion into someone else’s information system or other unlawful access to legally protected computer information of credit institutions, or the creation of deliberately malicious programs for electronic computers, making changes to existing programs, the use or distribution of malicious programs for A computer act is subject to qualification under Article 165 of the Criminal Code of the Donetsk People's Republic, and also, depending on the circumstances of the case, under Articles 317 or 318 of the Criminal Code of the Donetsk People's Republic, if as a result of unlawful access to computer information, destruction, blocking, modification or copying of information occurred, disruption of the operation of a computer, computer system or their network.
13. The theft of other people's funds through the use of a previously stolen or counterfeit credit (payment) card does not constitute fraud if cash is issued through an ATM without the participation of an authorized employee of the credit institution. In this case, the act should be qualified according to the relevant part of Article 164 of the Criminal Code of the Donetsk People's Republic.
The theft of other people's funds in bank accounts through the use of a stolen or counterfeit credit or payment card should be classified as fraud only in cases where a person, through deception or abuse of trust, misled an authorized employee of a credit, trading or service organization (for example, in cases where, using a bank card to pay for goods or services in a shopping or service center, a person signs the purchase receipt instead of the legal owner of the card or presents a fake passport in his name).
14. The production or sale of counterfeit credit or payment bank cards for marketing purposes is qualified under Article 209 of the Criminal Code of the Donetsk People's Republic. The production by a person of counterfeit bank payment or credit cards for use in order for the same person to commit crimes provided for in Part 3 or Part 4 of Article 165 of the Criminal Code of the Donetsk People's Republic should be qualified as preparation for fraud.
If a person used a stolen or counterfeit credit or payment card, but due to circumstances beyond his control, he was unable to turn other people’s funds into his own favor or for the benefit of other persons, the act, depending on the method of theft, should be qualified as attempted theft or fraud in part 3 of Article 29 of the Criminal Code of the Donetsk People's Republic and the corresponding part of Article 164 or Article 165 of the Criminal Code of the Donetsk People's Republic.
The sale of counterfeit credit or payment cards, as well as other payment documents that are not securities, obviously unsuitable for use, constitutes fraud and is subject to qualification under the relevant part of Article 165 of the Criminal Code of the Donetsk People's Republic. In the event that a person has produced counterfeit credit or payment cards for the purpose of selling, as well as other payment documents that are not securities, obviously unsuitable for use, but due to circumstances beyond his control was unable to sell them, the act must be qualified in accordance with Part 1 of Article 29 of the Criminal Code of the Donetsk People's Republic as preparation for fraud, if the circumstances of the case indicate that these actions were aimed at committing crimes provided for by Part 3 or Part 4 of Article 165 of the Criminal Code of the Donetsk People's Republic.
15. Since cash and other lottery tickets are not securities, their counterfeiting for the purpose of selling or illegally obtaining winnings can be qualified as preparation for fraud if the person’s actions contain signs of a crime provided for in part or article 165 of the Criminal Code of the Donetsk People’s Republic. In the event of selling a counterfeit lottery ticket or receiving a winning from it, the act should be classified as fraud.
16. Infliction of property damage through deception or abuse of trust in the absence of signs of theft should be distinguished from fraud (Article 177 of the Criminal Code of the Donetsk People's Republic). In the latter case, there are no such mandatory signs of fraud in their entirety or separately as illegal, final gratuitous seizure and (or) conversion of someone else’s property for the benefit of the perpetrator or for the benefit of other persons, committed for mercenary purposes.
When deciding whether a person’s actions constitute a crime, liability for which is provided for in Article 177 of the Criminal Code of the Donetsk People’s Republic, the court must establish whether the owner or other owner of the property suffered real material damage or damage in the form of lost profits, that is, lost income , which this person would have received under normal conditions of civil circulation, if his right had not been violated by deception or abuse of trust.
Deception or abuse of trust in order to obtain illegal property benefits can be expressed, for example, in the presentation by a person of forged documents that exempt from payment of payments established by law (except for those specified in Articles 216, 220 and 221 of the Criminal Code of the Donetsk People's Republic) or from payments for utility services, in unauthorized connection to energy networks, creating the possibility of unaccounted-for electricity consumption, or in the use of transport entrusted to this person for personal purposes.
17. In cases where deception is used by a person to facilitate access to someone else’s property, during the seizure of which his actions are discovered by the owner or other holder of this property or other persons, but the person, aware of this, continues to commit illegal seizure of property or its retention against the will of the owner property, the act should be qualified as robbery (for example, when a person asks the owner for a mobile phone for temporary use, and then disappears with the stolen phone).
18. Illegal gratuitous circulation of property entrusted to a person for one’s own benefit or the benefit of other persons, causing damage to the owner or other legal owner of this property, must be qualified by the courts as misappropriation or embezzlement, provided that the stolen property was in the lawful possession or control of this person who, by virtue of official or other official position, contract or special assignment, exercised powers to dispose, manage, deliver, use or store in relation to someone else’s property.
When deciding the issue of distinguishing the elements of embezzlement or embezzlement from theft, the courts must establish whether the person has the specified powers. The secret theft of someone else's property by a person who does not have such powers, but has access to stolen property due to work performed or other circumstances, must be qualified under Article 164 of the Criminal Code of the Donetsk People's Republic.
19. When considering cases of crimes provided for in Article 172 of the Criminal Code of the Donetsk People's Republic, courts should keep in mind that appropriation consists of gratuitous, committed for mercenary purposes, unlawful treatment by a person of the property entrusted to him for his own benefit against the will of the owner.
Misappropriation is considered a completed crime from the moment when the legal possession of the property entrusted to a person became illegal and this person began to take actions aimed at converting the said property to his own benefit (for example, from the moment when a person, through forgery, conceals the presence of entrusted property in his possession, or with moment of failure to fulfill a person’s obligation to deposit funds entrusted to that person into the bank account of the owner).
The unlawful actions of a person who, for personal gain, has spent the property entrusted to him against the will of the owner by consuming this property, spending it or transferring it to other persons, should be qualified as embezzlement.
Embezzlement should be considered a completed crime from the moment of unlawful withdrawal of entrusted property (its consumption, expenditure or alienation).
In the case where a person commits with sole intent the theft of property entrusted to him, one part of which is appropriated by him, and the other part of this property is wasted, the act does not form a set of crimes.
20. When resolving the issue of the presence of theft in the form of embezzlement or embezzlement in an act, the court must establish circumstances confirming that the person’s intent covered the unlawful, gratuitous nature of actions performed with the aim of converting the property entrusted to him for his own benefit or the benefit of other persons.
The direction of intent in each such case must be determined by the court based on the specific circumstances of the case, for example, such as whether the person has a real opportunity to return the property to its owner, or whether he has attempted to conceal his actions through forgery or other means.
In this case, the courts must take into account that partial compensation for damage to the victim in itself cannot indicate that the person has no intention to embezzle or embezzle the property entrusted to him.
21. In accordance with Part 2 of Article 34 of the Criminal Code of the Donetsk People's Republic, fraud, embezzlement or embezzlement are considered committed by a group of persons by prior conspiracy, provided that these crimes involved two or more persons who agreed in advance to commit them jointly.
When considering cases of these crimes committed by two or more persons, the court must find out what specific actions directly aimed at fulfilling the objective side of these crimes were performed by each of the accomplices. In addition, the court must examine at the trial and indicate in the verdict evidence confirming the guilt of each of the perpetrators and other accomplices (organizers, accomplices, instigators).
22. The executor of misappropriation or embezzlement can only be a person to whom someone else’s property was entrusted by a legal entity or individual on a legal basis for a specific purpose or for a specific activity. Based on the provisions of Part 4 of Article 33 of the Criminal Code of the Donetsk People's Republic, persons who do not have the indicated characteristics of a special subject of misappropriation or embezzlement, but who directly participated in the theft of property in accordance with a preliminary agreement with the person to whom this property was entrusted, must bear criminal liability under Article 32 and Article 172 Criminal Code of the Donetsk People's Republic as organizers, instigators or accomplices.
Theft of entrusted property should be considered committed by a group of persons by prior conspiracy if the crime involved two or more persons who meet the specified characteristics of a special subject of misappropriation or embezzlement (for example, the head of the organization in whose jurisdiction the stolen property is located, and an employee who is financially responsible under the contract for this property), who agreed in advance to jointly commit a crime.
23. In accordance with Part 3 of Article 34 of the Criminal Code of the Donetsk People's Republic, an organized group should be understood as a stable group of persons who have united in advance to commit one or more crimes. An organized group is distinguished by the presence of an organizer (leader), the stability of the group members, the distribution of roles between them in preparation for a crime and its actual commission. Based on this, an organized group may include persons who do not have the authority to order, manage or
use of entrusted property, as well as its delivery or storage, which previously combined to commit one or more crimes. If there are grounds for this, they are liable in accordance with Part 4 of Article 33 of the Criminal Code of the Donetsk People's Republic as organizers, instigators or accomplices of misappropriation. Organizers and leaders are responsible for all crimes committed by an organized group if they were included in their intent. Other members of the organized group are held accountable for crimes in the preparation or commission of which they participated (Article 34 of the Criminal Code of the Donetsk People's Republic).
Based on Part 2 of Article 32 of the Criminal Code of the Donetsk People's Republic, a person who organized the commission of fraud, misappropriation or embezzlement with the participation of persons who are not subject to criminal liability due to age, insanity or other circumstances provided for by the Criminal Code of the Donetsk People's Republic, or who persuaded such persons to commit of these crimes is recognized as the perpetrator of the crime.
24. Persons using their official position to commit fraud, embezzlement or embezzlement (part 3 of article 165, part 3 of article 172 of the Criminal Code of the Donetsk People’s Republic) should be understood as officials who have the characteristics provided for in Note 1 to Article 334 of the Criminal Code of the Donetsk People’s Republic , state or municipal employees who are not officials, as well as other persons who meet the requirements provided for in Note 1 to Article 225 of the Criminal Code of the Donetsk People's Republic (for example, a person who uses his official powers, including organizational, administrative or administrative and economic responsibilities in a commercial organization).
There is no sign of committing a crime using one’s official position in the case of misappropriation or embezzlement of property belonging to an individual (including an individual entrepreneur without forming a legal entity), which was entrusted by him to another individual on the basis of civil contracts of lease, contract, commission, transportation , storage, etc. or an employment contract. These actions are covered by Part 1 of Article 172 of the Criminal Code of the Donetsk People's Republic, unless the act contains other qualifying features provided for by this article.
Actions of organizers, instigators and accomplices of fraud, embezzlement or embezzlement, knowingly committed by a person using his official position, are qualified under the relevant part of Article 32 of the Criminal Code of the Donetsk People's Republic and under Part 3 of Article 165 or, respectively, under Part 3 of Article 172 of the Criminal Code of the Donetsk People's Republic .
25. When determining the value of property stolen as a result of fraud, misappropriation or embezzlement, one should proceed from its actual value at the time the crime was committed. In the absence of information about the price of stolen property, its value can be established on the basis of expert opinions.
When establishing the extent to which a person committed fraud, misappropriation or embezzlement, the courts should keep in mind that the theft of property with the simultaneous replacement of it with a less valuable one is qualified as theft in the amount of the value of the seized property.
26. Fraud, misappropriation or embezzlement, committed with the infliction of significant damage to a citizen, can be classified as completed crimes only in the case of actual infliction of significant property damage, which, in accordance with Note 2 to Article 164 of the Criminal Code of the Donetsk People's Republic, cannot be less than 2,500 ( two thousand five hundred) rubles.
When deciding whether a person’s actions have a qualifying sign of causing significant damage to a citizen, along with the value of stolen property, it is necessary to take into account the property status of the victim, in particular whether he has a source of income, their size and frequency of receipt, whether the victim has dependents, the total income of the members families with whom he runs a joint household. The victim’s opinion about the significance or insignificance of the damage caused to him as a result of the crime must be assessed by the court in conjunction with the case materials confirming the value of the stolen property and the property status of the victim.
27. The question of the presence in the actions of the perpetrators of a qualifying sign of committing fraud, misappropriation or embezzlement on a large or especially large scale must be resolved in accordance with Note 4 to Article 164 of the Criminal Code of the Donetsk People's Republic. Several thefts of someone else's property, the total value of which exceeds 250,000 (two hundred fifty thousand) rubles, and in an especially large amount - 1,000,000 (one million) rubles, if these thefts were committed in the same way and under the same circumstances, should be qualified as theft on a large scale. evidence of intent to commit theft on a large or especially large scale.
When resolving the issue of qualifying the actions of persons who committed fraud, embezzlement or embezzlement as part of a group of persons by prior conspiracy or an organized group on the basis of “causing significant damage to a citizen” or on the basis of “on a large scale” or “on an especially large scale”, one should proceed from the total value of property stolen by all members of the criminal group.
28. When deciding whether a person is guilty of committing fraud, misappropriation or embezzlement, the courts must keep in mind that a mandatory sign of theft is the presence of a person’s selfish goal, that is, the desire to seize and (or) convert someone else’s property in their favor or to dispose of said property as your own, including by transferring it into the possession of other persons.
It is necessary to distinguish from theft cases when a person, confiscating and (or) converting someone else’s property for his own benefit or the benefit of other persons, acted in order to exercise his actual or alleged right to this property (for example, if a person appropriated the property entrusted to him in order to secure a debt obligations not fulfilled by the owner of the property). If there are grounds provided for in Article 390 of the Criminal Code of the Donetsk People's Republic, the guilty person in these cases must be held criminally liable for arbitrariness.
Official website of the Supreme Court of the Russian Federation
The Plenum of the Supreme Court decided to change several of its “criminal” resolutions at once. The amendments will affect the special procedure for trial and examination in criminal cases, cassation proceedings, theft, fraud, misappropriation and embezzlement. The Supreme Court reminds that a special order is not a reason to ignore a civil claim. How to differentiate between electronic theft and fraud and what to do in cassation if it is necessary to worsen the situation of the convicted person - in our cards.
On June 29, the Plenum of the Supreme Court adjusted six of its decisions. The main changes are in our cards.
Source: Resolution of the Plenum of the Armed Forces “On amendments to certain resolutions of the Plenum of the Armed Forces of the Russian Federation on criminal cases.”
New in examinations and special procedures
1 Boundaries of expert competence
An expert cannot evaluate the reliability of someone's testimony. This is done by the prosecutor, investigator, investigator or court.
2 Be more attentive to the defendant
When a defendant requests a special sentence, he agrees with the prosecution. Such a charge must be understood as factual circumstances, the form of guilt, motives, legal assessment of the act, its nature and the extent of the harm caused, the Supreme Court explained.
If the defendant has previously disputed the charge or refused to testify, the court needs to clarify his position and make sure that the person really agrees with the charge.
3 Don’t forget about the victim
If the prosecutor, private prosecutor or victim does not want to consider the case in a special manner, the court conducts the trial in a general manner. The disagreement of any of these persons is sufficient, reminds the Supreme Court.
4 Give time to everyone
When the court proceeds to the general order of the proceedings, it must provide the parties with an opportunity to prepare for this. Depending on their wishes, a break can be declared or the meeting adjourned.
5 Compensate for damages
A special order is not a reason to ignore a civil claim. The court must consider it. For example, a claim can be granted if the claims arise from a charge to which the defendant agreed. Of course, if the verdict is guilty.
6 Do not increase the punishment
When re-examining the case, the court cannot impose a punishment that is more severe than the original one if a higher authority overturned the sentence on grounds not related to the worsening of the situation of the convicted person. This rule also applies when a new examination is carried out in the general manner.
7 When the matter is irrevocable
The pre-trial cooperation agreement may not include all crimes with which the defendant is accused. On this basis, the case cannot be returned to the prosecutor if the person agreed with the accusation in full.
What cassation courts should remember
1 Unusual cashiers
The Commissioner for Human Rights in the Russian Federation can apply for cassation. He does not file a complaint, but a petition, which is considered in the same way as complaints.
A specialized prosecutor (for example, a transport prosecutor) can also submit a representation. But only on those matters that fall under his competence.
2 Soft cassation
Cassation can only improve the situation of the convicted person. If there are grounds for increased punishment or conviction for a more serious crime, the case must be returned to lower authorities or the prosecutor.
Electronic theft
1 Theft, not fraud
If a criminal was able to secretly steal money from a bank account or electronic money because he had access to the owner’s confidential information, this must be classified as theft (clause “d”, part 3 of article 158 of the Criminal Code).
2 Place and time
Theft from a bank account and theft of electronic money is considered completed from the moment the money “leaves” the account.
And the place where such theft ends will be the place where the division of the organization in which the account was opened or records of the stolen money is located. The same rule applies when determining the end point of non-cash fraud.
Ekaterina Korobka
Writing off money from someone else's bank card: fraud or theft?
April 22, 2021 4:53 pm
Lawyers were told about the qualifications of non-cash thefts
On April 22, Doctor of Law, Professor of the Department of Criminal Law and Criminology, Faculty of Law, Moscow State University, spoke to the audience of the FPA RF webinar on advanced training for lawyers. M.V. Lomonosov, member of the NCC at the Supreme Court of the Russian Federation, editor-in-chief of the magazine “Criminal Law” Pavel Yani. He gave a lecture on the topic “Qualification of theft of non-cash funds.”
At the beginning of his speech, the speaker noted that in any monograph of previous years one can find a reference to three criteria for recognizing property as the subject of theft. Among them is the so-called physical sign, which stipulates that the stolen property must be a thing. According to the scientist, for many years the courts, following the explanations of the Plenum of the Supreme Court of the Russian Federation in 2007, charged the fraudster who encroached on other people's non-cash funds with the crime under Art. 159 of the Criminal Code of the Russian Federation. At the same time, they qualified the act not as the acquisition of rights to someone else’s property, but as theft.
The fact is, the expert explained, that there are two types of fraud, one of which is a form of theft (theft by deception), and the second is the acquisition of rights to someone else’s property. And if the signs of theft are explained in paragraph 1 of the note to Art. 158 of the Criminal Code of the Russian Federation, there are no explanations in the law about acquiring the right to someone else’s property.
Pavel Yani emphasized that the civil doctrine, as well as a number of practitioners, in some cases establish a regime of things for uncertificated securities and non-cash funds, but still this does not fill the category “Right to someone else’s property” with content. The Supreme Court of the Russian Federation, in Resolution of the Plenum of November 30, 2017 No. 48, indicated the need to qualify the theft of property using someone else’s bank card not only by receiving cash at the terminal, but also by transferring it from the owner’s account to the account of the attacker or other persons as theft .
“Moreover, you should pay attention to the fact that, civilly, a person who has entered into an agreement to open a bank account is the owner of the account (and not the funds in the account), while the Plenum of the Armed Forces of the Russian Federation interprets this person as the owner of the funds in the account,” the lecturer noted . “Thus, we are dealing with the definition of the category of theft, as well as the subject of theft, and the extension of these norms to non-cash funds.”
The expert added that subsequently amendments were made to the Criminal Code of the Russian Federation. Thus, the legislator expressed an unequivocal position that the subject of theft is not necessarily a thing.
Pavel Yani noted that on the interpretation of the provisions of Art. 159.3 and 159.6 of the Criminal Code of the Russian Federation there is a lot of debate, but a clear understanding has not yet been developed.
The first question, in particular, concerns Art. 159.3 of the Criminal Code of the Russian Federation: did the legislator, together with the wording of the norm, change its content? “At first glance, definitely yes,” says Pavel Yani. – If previously criminal liability was provided for fraud using payment cards, – i.e. theft of someone else’s property using a counterfeit or a payment card belonging to another person by deceiving an authorized employee of a credit, trade or other organization - then from April 2021 the offense is formulated as fraud using electronic means of payment.” According to the speaker, such an interpretation of clause “g” of Part 3 of Art. 158, when the theft of cash from someone else’s bank card against the will of its holder should be qualified as theft from a bank account.
The lecturer also touched upon the problem of recognition as a victim depending on the type of card from which the theft was committed (debit or credit). According to him, in some regions of the country, judicial practice develops in such a way that when using a credit card seized from another person against his will, the credit institution (bank) is recognized as the victim, and in the case of a debit card, the account owner (card holder) is recognized as the victim. The courts proceed from the fact that when using a credit card, funds are directly credited to a third party or transferred to the thief, bypassing the victim.
Pavel Yani stated his disagreement with this position. “In accordance with the Regulation of the Bank of Russia dated December 24, 2004 No. 266-P (as amended on January 14, 2015) “On the issuance of payment cards and on transactions performed with their use,” the bank in a number of cases undertakes to otherwise the person who dials the PIN code fulfills the instructions of the person who placed this card in the terminal. If it is a credit card, in this case the bank will credit the requested amount to the cardholder's account. Accordingly, funds are stolen from the cardholder’s account, so the victim should be recognized as the victim, not the bank,” the lecturer explained.
Returning to the question of whether the content of Art. 159.3 of the Criminal Code of the Russian Federation, Pavel Yani noted that in paragraph 17 of the Resolution of the Plenum of the Supreme Court of the Russian Federation No. 48, the content of this norm in its previous wording was explained.
As an example, he cited a case where a guilty person informs an authorized employee (cashier in a store) of knowingly false information about the ownership of a payment card or is silent about the fact that the card with which he pays does not belong to him. “Counterarguments regarding the position of the Plenum of the Armed Forces of the Russian Federation from a number of my colleagues are that the cashier is not obliged to identify the owner of the bank card when paying for a purchase,” noted Pavel Yani. At the same time, his own position is that in accordance with the rules of turnover established by the Civil Code of the Russian Federation, each participant is obliged to presume the good faith of the other party. “That is, by the very fact of using the card, by presenting it, the guilty person claims that he is acting legally. Thus, it misleads the cashier,” the scientist believes.
At the same time, he noted, if you recognize the card holder or the bank as a victim, then these persons are not misled, but a third party is misled. “Indeed, in 1986, the Plenum of the Armed Forces of the Russian Federation classified as fraud only the actions of the perpetrator aimed at misleading the victim, who as a result transfers his property to the perpetrator or other persons. But already in 2021, this point of view was rejected, and the Plenum of the Supreme Court of the Russian Federation, in paragraph 1 of Resolution No. 48, indicated that in case of fraud, not only the victims, but also other persons who transfer property (the right to property) can be misled to another person, or do not prevent its withdrawal by another person,” the speaker explained.
Pavel Yani drew attention to the fact that, according to the provisions of Art. 159.6 of the Criminal Code of the Russian Federation, fraud using electronic means of payment presupposes the presence of a misled person making a decision on the transfer of property. “This is a good norm, but the indication of fraud in it is superfluous,” he noted, adding that, in the opinion of the Plenum of the RF Armed Forces, this norm contains a description not of the elements of fraud, but of a type of theft. Thus, the expert concluded, the meaning of the changes made to Art. 159.3 of the Criminal Code of the Russian Federation, consists of expanding the list of means of committing a crime.
At the end of the lecture, the speaker answered numerous questions from the webinar participants.
Please note that today, April 22, the webinar will be available until 00.00 (Moscow time). The broadcast will be repeated on Sunday, April 26.
Tatiana Kuznetsova
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Protecting the victim from theft, robbery and robbery will be simplified
Changes were also made to the resolution of the Plenum of the Supreme Court No. 17 of June 29, 2010 “On the practice of application by courts of norms regulating the participation of the victim in criminal proceedings.” The main novelty is related to the regulation of the period for recognizing a person as a victim. If previously an investigator or inquiry officer could make a decision recognizing a citizen as a victim a long time after the initiation of a criminal case, sometimes after a month or even several months, now the investigator (inquirer) must do this immediately after the initiation of a criminal case or after receiving information about the victim from a crime to a person (if there is no information about him at the time of initiation of a criminal case). To substantiate its requirement, the Plenum of the Supreme Court of the Russian Federation indicated that the legal status of a person as a victim is established based on his actual situation and is only procedurally formalized by a resolution, but is not formed by it. Thus, recognizing a person as a victim and vesting him with the corresponding rights should no longer depend on the discretion of the investigator or interrogating officer. In case of violation, the Supreme Court indicates that there are all grounds for appealing the actions of the investigator in accordance with Art. 124 or 125 of the Code of Criminal Procedure of the Russian Federation.
This means that a person who has suffered from a crime will be able to earlier become a participant in the process to exercise their rights granted by the Code of Criminal Procedure of the Russian Federation.
