Art. 33 of the Criminal Code of the Russian Federation provides for the responsibility of citizens if they acted as organizers, accomplices or instigators in the commission of a crime. The description of this legislative act is used by the state to establish and distribute the responsibility of those people who were somehow aware of the crime being committed and could even influence the perpetrator in any way available to them. That is, the law classifies such persons as accomplices, even if these people did not physically participate in the crime.
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Article 33 of the Criminal Code of the Russian Federation
Application of Art. 33 of the Criminal Code of the Russian Federation is due to the fact that a crime sometimes involves not one criminal, but several. In this case, it is important for the court to distinguish and determine what type of crime those participating in belong to, since the punishment of the criminals will depend on this basis.
According to Art. 33 of the Criminal Code distributes 4 types of criminals, namely:
- Executor.
- Organizer.
- Instigator.
- Accomplice.
The perpetrator is a direct participant in the crime, the main person who, through his actions, caused harm to another person or someone else’s property. There may be several such perpetrators in one crime.
Organizers include the person who organized the criminal group, the crime and led the chaos. Essentially, this person has power over all other people related to the offense.
An instigator is a person who, through persuasion, threats, blackmail or other actions that put pressure on the decision of another person, and thus forces him to commit an offense.
An accomplice is a person who helps the perpetrator or organizer of a crime with advice or other information in order to benefit from the offense.
An accomplice is also recognized as someone who promised the criminal in advance to hide the crime. The punishment for all those listed in Article 33 of the Criminal Code is determined based on what they committed, since the types of crimes can be different. Some persons may be subject to mitigating or aggravating circumstances that may exist during the commission of a crime.
Organizer of the crime
From the definition of the organizer of a crime given in Part 3 of Art. 33 of the Criminal Code of the Russian Federation, four types of organizational activities can be distinguished:
- organization of the commission of a crime;
- directing the execution of a crime;
- creation of an organized group or criminal community (criminal organization);
- leadership of an organized group or criminal community (criminal organization).
Firstly, the organizer of a crime is the person who organized the commission of the crime, i.e. preparing the commission of a crime in whole or in most part by developing a plan for committing a crime, finding accomplices, instruments and means of committing a crime, training accomplices, etc.
Secondly, the organizer is the person who led the execution of the crime, i.e. a person who organizes the activities of accomplices in the direct commission of a crime both at the place of its commission and outside it.
Thirdly, the organizer is the person who created an organized group or criminal community (criminal organization), i.e. a person whose activities result in finding accomplices, instruments and means of committing a crime, developing plans for committing crimes, etc. was the creation of an organized group (Part 3 of Article 35 of the Criminal Code of the Russian Federation) or a criminal community (criminal organization) (Part 4 of Article 35 of the Criminal Code of the Russian Federation).
Fourthly, the organizer is the person who led an organized group or criminal community (criminal organization), i.e. a person who heads an organized group or criminal community (criminal organization) already created by himself or another person.
It should also be noted that assessing a person’s actions as organizational excludes assessing these same actions as incitement to commit a crime or complicity in its commission.
Punishment for the organizer
The organizer of a crime is a person who is active in everything related to preparation for committing an offense.
Such an event participant can have two roles:
- direct participant;
- The role of only the organizer.
With direct participation, the criminal carries out the organization primarily on his own, develops a plan for the proposed act, determines the role of each participant, if there are several of them, and also determines his role in participation. If the organizer only intends to develop a plan, then he does not participate in the process itself, but at the same time manages the process completely, communicating with other participants in ways available to him.
The punishment of this accomplice will be determined in accordance with the obligations assumed, since offenses may vary in severity, but the terms of the name are subject to change.
Also, when assigning a measure of responsibility, the identity of other people who are part of the company that committed the offense is taken into account:
- Minors.
- Incapacitated.
- Mentally ill, but not incapacitated.
In this case, the organizer, even if he did not participate in the crime, is recognized as the direct perpetrator, since he influenced other accomplices thanks to his strength, both physical and intellectual, and also suppressed the weaker ones and essentially forced or incited them to act as he pleased.
Executor
This type of accomplice includes the person who carries out the main harm, that is, the objective side of the offense.
To recognize a person as a performer, he must meet certain points, namely:
- fulfilled the objective side partially or completely;
- used by a person who has non-criminal status;
- possessed special knowledge if required.
If the perpetrator does not fulfill his functions in committing the crime, for example, when beating does not cause physical harm to the victim, then the crime will be considered imperfect.
By definition, such an offender goes into the category of accomplices, which means that aiding in the commission of a crime of the Criminal Code of the Russian Federation will be applicable to him and he will be liable under this legislative act.
If a person, in carrying out criminal intentions, uses another person who cannot be the object of a criminal conviction, then he takes full responsibility for the actions of the person not subject to criminal liability and becomes a perpetrator before the law, although in fact he may commit incitement to commit a crime (Article of the Criminal Code of the Russian Federation). finds him guilty.
The commentary to Article 33 states that when committing certain types of crimes, for example, robbery or theft of intellectual property, the perpetrator must have certain knowledge that allows him to carry out criminal intentions. If a person does not have such knowledge, then he is unlikely to be able to commit the objective side of the offense, which means his actions will be classified as other actions and attributed to other participants in the plan aimed at causing public harm.
Types of accomplices in crime
In accordance with Part 1 of Art. 33 of the Criminal Code of the Russian Federation the following are recognized as accomplices to a crime: the perpetrator, the organizer, the instigator and the accomplice. The basis for the distinction is the functional role of the accomplices, the nature of the actions they perform, as well as the degree of their participation in the commission of the crime. The purpose of this distinction is to give a more accurate legal assessment of the actions of each accomplice, determine the extent of his contribution to the achievement of the criminal result and assign a fair punishment corresponding to the nature and extent of the act committed, i.e. strictly individualize the measure of state coercion.
The law lists different types of accomplices, starting with the performer. This sequence is explained by the fact that the performer is a key figure in complicity. His behavior affects the legal assessment of the actions of other accomplices.
Executor
- a person who directly committed a crime or directly participated in its commission together with other persons (co-perpetrators), as well as a person who committed a crime through the use of other persons who are not subject to criminal liability due to age, insanity or other circumstances provided for by criminal law (Part. 2 Article 33 of the Criminal Code of the Russian Federation).
The perpetrator physically performs actions that characterize the objective side of the crime. The objective side of the crime can be carried out by the perpetrator in whole or in part, together with other persons. However, their roles in technical terms may be different. For example, in a murder involving several persons, it is not necessary that the fatal injuries were caused by each of the participants. For example, one of the accomplices holds the victim, uses violence against him, depriving him of the opportunity to resist, and the other inflicts fatal wounds on the victim[12].
Organizer
a person who organized the commission of a crime or supervised its execution is recognized, as well as a person who created an organized group or criminal community (criminal organization) or supervised them (Part 3 of Article 33 of the Criminal Code of the Russian Federation).
The organizer of the crime is the most dangerous figure among other accomplices. Organization of crime is a very broad concept and can be expressed in several forms of criminal behavior.
The first form of criminal activity of the organizer is that he is always the initiator of the commission of a crime, he owns the idea of a specific crime. To implement this idea, he looks for accomplices and the target of the attack, develops a plan for committing a crime, prepares accomplices, teaching them special skills and techniques, distributes roles, etc.
The second form of organizing a crime is to direct all criminal activities of accomplices. The leader coordinates their actions, determines their sequence, and in other ways ensures the implementation of criminal intentions and methods of covering up criminal activities.
When implementing the third form of activity, the organizer creates an organized group or criminal community (criminal organization). The social danger of the organizer increases due to the fact that he additionally takes measures to unite the members of the criminal association, maintain discipline and ensure secrecy. The organizer develops the structure of the association, since it is created, as a rule, to commit a certain number of crimes.
Instigator
a person is recognized as having persuaded another person to commit a crime through persuasion, bribery, threat or other means (Part 4 of Article 33 of the Criminal Code of the Russian Federation).
The instigator influences the consciousness and will of the instigated, causing him to decide to commit a crime. Using various methods, the instigator does not paralyze the will of the swayed, does not mislead him. A person incited to commit a crime remains free to choose his own behavior. The instigator seeks to arouse the desire of another person to make a decision on his own. The methods used by the instigator are different. They largely depend on the nature of the relationship between the instigator and the instigated. The law names several of the most common methods: persuasion, bribery, threat. All of them are active in nature, have a verbal expression, expressed orally or in writing, gestures and facial expressions can be used. Persuasion is a request or advice to commit a crime in mutual interests. At the same time, the interests of the incited are brought to the fore, but the interests of the instigator are not hidden either. Bribery is the provision or promise of a property benefit: monetary reward, division of stolen property. Bribery may be accompanied by the transfer of part of the reward (half now, the rest after the crime is completed). Threat – expression of intention to use violence against the instigated or his relatives. The threat must be real. Other methods include inciting feelings such as hatred, envy, revenge, jealousy. The instigator takes into account the individual characteristics of the psychology of the instigated.
Incitement, carried out by any means and in any form, is always committed in relation to a specific person and in relation to a specific crime.
Thus, the objective side of incitement lies in the active actions of the instigator, during which he manages to persuade another person to commit a crime. His actions determine the commission of a crime by the inclined person.
An accomplice
is recognized as a person who facilitated the commission of a crime by advice, instructions, provision of information, means or instruments for committing a crime or removing obstacles, promised in advance to hide the criminal, means or instruments of committing a crime, traces of a crime or objects obtained by criminal means, promised in advance to purchase or sell such objects (Part 5 of Article 33 of the Criminal Code of the Russian Federation).
An accomplice, without taking personal part in the commission of a crime, creates only the necessary conditions for its commission, including at the preparation stage. An accomplice, as a rule, is a less dangerous figure in complicity compared to the organizer or perpetrator of a crime: the initiative to commit a crime belongs not to him, but to the instigator; he does not direct the commission of the crime - this is done by the organizer of the crime, and, finally, he does not take part, together with the perpetrator, in the commission of actions that characterize the objective side of the crime.
According to the nature of the acts committed, complicity is usually divided into physical and intellectual.
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Physical complicity
consists of active actions (in some cases inaction) that contribute to the fulfillment of the objective side of the crime, and can be expressed specifically in the following: providing means and instruments for committing a crime, removing various obstacles, providing material assistance in the form of money and other material support.
Intellectual aiding
is expressed in mental support for the performer, not related to incitement. Intellectual complicity strengthens the previously established determination to commit a crime by giving the perpetrator or organizer advice, instructions, and providing various information that will facilitate the commission of the crime. As intellectual complicity, one should consider the previously promised concealment of a criminal or traces of a crime, as well as a promise given in advance to acquire or sell items obtained by criminal means.
Definition of instigator
In order for a participant to be found guilty of incitement to commit a crime, the article of the Criminal Code of the Russian Federation stipulates that he must commit certain actions in order to be charged with such a crime.
Typically, such actions mean:
- Bribery is a material reward for the perpetrator for committing an offense.
- Persuasion is a systematic suggestion to a person about the need for some action.
- Threat - intimidation of a person by any means to carry out evil intentions with his hands.
- Other actions aimed at ensuring that another person becomes the performer.
To expose the instigator, it is necessary that other persons who are accomplices give evidence indicating that this person incited them in any way to commit illegal actions. For example, when committing fraud, the instigator convinces the person who will carry out this activity to give false information.
It is worth noting that the incitement article of the Criminal Code of the Russian Federation always applies if such a fact of commission of a crime has been established in relation to a capable and criminally responsible person.
If a person belongs to the category of persons who, for one reason or another, are recognized as limited in bearing responsibility, then the instigator changes his status to the perpetrator, which implies a more severe punishment.
Co-execution in acquisition or sales?
Lawyer Antonov A.P.
To qualify the actions of an intermediary as complicity in the sale, it must be proven that he acted on the instructions or request of the owner of the drugs, and not just knew the path to the right place and the agreed knock on the door. According to the Resolution of the Plenum of the Armed Forces of the Russian Federation dated June 15, 2006 No. 14 (as amended on June 30, 2015): “in the case when a person transfers narcotic drugs to the purchaser ... at the request (instruction) of another person to whom they belong, his actions should be qualified as co-execution in the illegal sale of these funds, substances, plants.” The implication is that the opposite is true: if a person does not act at the request (instruction) of a drug seller, his actions should not be qualified as co-perpetrators in illegal sales. Although significant changes were made to the Resolution of the Plenum on Drug Cases in 2015, most of the legal positions on the distinction between assistance in acquisition and sales contained in the decisions of the Supreme Court adopted before 2015 remain relevant. The most revealing case is the Garanov case.
Resolution of the Presidium of the RF Armed Forces dated August 1, 2001 No. 488P01 states: “As can be seen from the case materials, O. recruited Garanov as an intermediary to purchase a small amount of the drug for himself, indicating that it was intended for personal consumption. By agreement with O. and together with him, Garanov fulfilled the objective side of the act, which provides for liability for the illegal acquisition and storage without the purpose of selling a narcotic drug on a large scale: for O.’s money and at his request, he bought heroin and gave it to him. Garanov’s intent included providing assistance to O. in purchasing heroin, and not its sale (distribution). In relation to the provisions of paragraph 2 of Art. 33 of the Criminal Code of the Russian Federation, Garanov’s direct participation in O.’s illegal acquisition of heroin is co-execution, and their actions, if O. is brought to criminal liability under Part 1 of Art. 228 of the Criminal Code of the Russian Federation, as provided for in Part 2 of Art. 34 of the Criminal Code of the Russian Federation, should have been qualified under one article of the Special Part of the Criminal Code of the Russian Federation.”
On similar grounds, the criminal prosecution of Lyzhin, convicted of complicity in the sale, was discontinued. The Supreme Court admitted that: “as can be seen from the case materials and the court established in the verdict, K., who carried out the test purchase of the narcotic drug, engaged Lyzhin as an intermediary for the purchase of the narcotic drug and for this purpose gave him money twice. It was with this money that Lyzhin purchased hashish (0.3 grams and 0.15 grams) from Popovich and handed it over to K. There is information that K. intended to sell the narcotic drug received through Lyzhin, and Lyzhin was aware of this, in the materials of this There is no criminal case and the court did not establish such circumstances in the verdict. Consequently, Lyzhin acted in the interests of the acquirer, K. His intention was only to assist K. in purchasing hashish for the latter’s money, and not to sell him the narcotic drug. Therefore, what Lyzhin did should be regarded as complicity in the illegal acquisition of a narcotic drug without the purpose of sale” (Supervisory ruling of the RF Armed Forces dated April 10, 2007 No. 5-D07-26 in the Lyzhin case)
More examples. “The evidence available in the case materials and examined at the court hearing indicates that at the moment when B. approached Ryzhov, he did not have a narcotic drug that he could sell. At the same time, the heroin bought by Ryzhov for B.’s money belonged to the latter, who took his property as the owner” (Determination of the RF Armed Forces of January 16, 2013 No. 50-D12-116 in the Ryzhov case). “The concept of “sale” means the sale of narcotic drugs (sale), therefore, in cases where the offender, at the request of another person and for his money, illegally acquires a narcotic drug, his actions do not constitute its sale, but complicity in its acquisition, regardless of the under what conditions does he do this and whether he receives remuneration for this” (Decision of the Supreme Court of the Russian Federation of June 2, 2010 in the Khaburzina case).
“The transfer of a narcotic drug to another person in itself is not a basis for qualifying the actions of the perpetrator as sale. According to the law, the sale of narcotic drugs means any method of transferring drugs to another person who does not own them. However, it is necessary to establish that the intent of the perpetrator was aimed specifically at the distribution of narcotic drugs” (Decision of the Supreme Court of the Russian Federation of September 13, 2012 in the Mikhailovsky case).
So far, recent practice (after 2015) has been found only at the level of courts of the constituent entities of the Russian Federation. This does not mean a change in the position of the RF Supreme Court on this issue, but is a consequence of a significant reduction in the number of complaints considered by the Supreme Court against sentences that have entered into legal force. If in 2003 the Supreme Court considered the merits of 19.3 thousand criminal cases based on what were then called supervisory complaints, then in 2017 only 9.3 thousand cases were considered. The decisions of regional courts indicate that the position of the Supreme Court on this topic has not changed. Thus, by the Resolution of the Presidium of the Moscow City Court dated August 31, 2018 in case No. 44u-473/2018 against Rozhkov, all charges under Article 228.1 were dropped, since: “there is no evidence confirming the court’s conclusion that, by transferring I. G. narcotic drug, Rozhkov V.A. acted with the aim of its implementation, the court of first instance did not include in the verdict.”
Sincerely, lawyer Anatoly Antonov, managing partner of the law firm Antonov and Partners.
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Aiding
If the accused is charged with aiding and abetting the Criminal Code of the Russian Federation, this means that the person in every possible way helped other participants in the crime in committing it or in hiding traces that could incriminate the suspects.
The Code understands the commission of complicity if the accomplice commits the following actions:
- acquires or destroys a crime weapon;
- gives advice on concealing the offense;
- promises in advance to help in carrying out the crime;
Also, the concept of complicity can have two forms: actions, when complicity is expressed in the form of assistance in any way, or inaction, when the accomplice does not report illegal information known to him.
Proven complicity is a rather complex action in practice, since most criminal acts are qualified under the Criminal Code of the Russian Federation and are independent violations of the law.
In the Russian Federation, complicity can be proven only with very compelling reasons. In this case, the actions of the accomplice must have a specific form, that is, complicity. For example, if a person wants to commit suicide, then an accomplice should facilitate this. However, such a person may be charged with incitement to suicide if this type of crime is proven.
In America, it is much easier to accuse a person of complicity; for example, in terrorism cases, any action aimed at helping a militant, including legal assistance, is punishable under the article of complicity.
