Criminal liability for complicity in a crime

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

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

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

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

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

• Article 33. Types of accomplices in a crime
• Article 35. Committing a crime by a group of persons, a group of persons by prior conspiracy, an organized group or a criminal community (criminal organization)

Performer's kurtosis

The excess of the performer is the commission of acts that are included only in the intent of the performer.
In any type of combined crime, excess is possible. That is, the performer exceeds the limits within which he must act when implementing illegal actions. This entails the implementation of a more serious crime. A feature of excess is the absence of a causal connection between the intent of the accomplices and the illegal actions.

Types of excess:

1. Qualitative excess - a person who directly commits an offense, which is included in the intent of the other accomplices, commits another type of crime that was not covered by intent.
2. Quantitative excess – the actions of the performer led to more severe consequences. A different result of actions or in the case of a different method of carrying out the crime is also possible. In this case, exceeding the result required by the criminals does not entail an interruption of the crime.

If the crime turns out to be less serious, the perpetrator is provided with a waiver of the more serious crime (mitigates the sentence).

In the case of quantitative excess, accomplices are responsible either for the fact of an unfinished (for example, attempted) crime or a completed one, but part of their plans.

In case of qualitative excess, the punishment for the performer will be based on the totality of actions (both planned and executed).

Complicity begins to appear in legal sources of the Middle Ages. This suggests that this concept is one of the most ancient in the history of criminal law. Moreover, even modern legislation has not been able to eradicate this criminal institution. An example of this is the corruption system that has developed in Russia in recent years.

Harboring

Unlike complicity, concealment occurs after the unlawful act has been committed. According to the provisions of the Criminal Code, concealment of relatives and spouses is not punishable.

From the objective side, concealment is always an active action. There are 2 types of this assistance: intellectual and physical. Intellectual concealment is not punishable by law. However, there are exceptions - this is a false denunciation (Article 306) and false testimony, including the conclusions of specialists, translators, experts (Article 307), but according to the code they are separate illegal acts.

Physical concealment is divided into:

• hiding the culprit from the police (providing housing, fake documents, providing food, money);
• destruction of traces (elimination of evidence, concealment of a corpse);
• getting rid of tools (destruction, modification, concealment);
• purchase or sale of stolen property that was transferred to the concealer by criminals (Article 175).

The subjective side is only intent. The guilty person is punished only if he realizes that he is committing an unlawful act and the actions he takes are desirable for him.

General concepts and theories of complicity

The concept of Russian law recognizes group participation as one of the most complex institutions. At the same time, the question of the exact understanding of this concept remains debatable. In the version of the Criminal Code of Russia introduced in 1996, Chapter 7, which includes five articles, is allocated to the concept, forms, types, and signs of complicity in crimes.

If we consider the concept of culpability in a general sense, these are various types of cases of crimes committed by several people.

In a narrower sense, the definition of complicity includes the conscious common participation of several people in operations with criminal intent.

Analysis of the legal aspects of this concept points to two main theories:

1. The theory of the accessory nature of culpability.
2. Theory of independence of actions of accomplices.

Based on the first point of view, culpability has an additional, dependent character. The main criterion here is the actions of the performer. The actions of other participants act as auxiliary ones. Thus, during the legal assessment of the activities of the accomplices, there is a complete comparison with the actions of the performer.

If his actions are recognized as illegal and subject to punishment, then the accomplices will bear the same responsibility and the same sanctions should be applied to them. Accordingly, if the perpetrator cannot be brought in, then the accomplices will also not be punished.

And yet, some legal scholars are inclined to believe that if the perpetrator refuses to carry out the crime, the accomplices should be punished.

The essence of the second theory is the understanding of culpability as a separate form of crime. It follows that the accomplices are personally responsible for their crimes, and not for the behavior of the main criminal. In such a situation, each person individually is subject to criminal prosecution according to the relevant standards.

Even in the absence of grounds for punishing the perpetrator (For example, if the offender repented or voluntarily refused to commit the crime) or unforeseen circumstances (death of the perpetrator), the accomplices will bear the independent burden of responsibility.

Liability of accomplices

The Criminal Code of the Russian Federation contains some specific qualifications for those crimes that are committed in complicity. The responsibility of the perpetrators and co-performers is established by the article of the Special Part of the Criminal Code, which describes the responsibility for the crime committed in this way. The liability provided for the organizer, accomplice and instigator is established by the relevant article of the Special Part of the Criminal Code. If the perpetrator did not, due to circumstances, complete the crime, and these circumstances did not depend on him, other accomplices must bear responsibility for the attempt or preparation. If the perpetrator voluntarily renounces his criminal actions, the acts of the remaining accomplices are subject to a separate criminal assessment with a determination of responsibility.

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Difference from instigator

Subject characterized by part five of Art. 33 of the Criminal Code of the Russian Federation, does not provoke the determination of other citizens to commit an unlawful act. He can only strengthen it. Moreover, such influence on other persons does not act as a distinctive sign of complicity. An entity that strengthens someone's resolve to commit an attack does not always fall under the characteristics given in the fifth part. Ordinary approval of intentions to carry out illegal actions is not regarded as complicity. However, if it entailed acts contributing to the crime, the situation is different. For example, the behavior of a citizen who encourages a friend who has decided to commit illegal actions does not fall under the fifth part of Art. 33 of the Criminal Code of the Russian Federation. This subject cannot be called an accomplice to the crime. Approval, which was expressed by the boss or another citizen, in relation to whom the performer is dependent (subordinate), does not in itself contribute to the commission of an assault. Accordingly, it also does not fall under part five of Art. 33 of the Criminal Code of the Russian Federation. However, if approval of the desire to commit theft was expressed by the watchman in such a way that the alleged criminals should count on his assistance, then the person’s behavior will be regarded as a type of complicity. Any complicity always arises after the determination to commit an attack appears.

Case studies

1. After drinking alcohol together, two drinking companions quarreled and one of them beat the other, who was unable to fight back and fell into frustration. The third participant in the feast approached the upset subject and motivated him, pointlessly offering to hit back at the offender. Having chosen a piece of board as a weapon of retaliation, the beaten subject approached the offender from behind and struck a blow, which later became the cause of death. The body of justice did not recognize the person who pushed the killer to commit a crime as a provocateur, and his actions as complicity, since he did not have the intention to kill the victim and did not propose such an action to be implemented.
2. A group of people agreed to commit rape against an adult woman, which they carried out, but in the process, one of the accomplices, offended by the victim’s behavior, stabbed her several times, leading to death. All participants in the rape were convicted under the relevant article of the Criminal Code of the Russian Federation, with the exception of the murderer, whose punishment was determined by the totality of the acts carried out.

Provision of information

It is understood as the transfer of information to a subject who is obviously ready to commit a crime or is already carrying out illegal behavioral acts. Providing information is also aimed at facilitating the commission of an act. But unlike instructions or advice, it does not contain data on the behavior options of the accomplices. In this case, the subjects themselves evaluate the information and choose ways to optimize actions taking it into account. By providing information, the accomplice is not directly interested in achieving the criminal goal. This form of assistance can be expressed in both active and passive behavioral acts.

Involvement in crime

Involved in the crime committed are not only accomplices, but also other people related to the crime. In domestic criminal law, such persons are called “touched” to the crime.

Involvement in crime is an attack on the opportunity to prevent or solve a crime. Unlike complicity, with implication, the actions of the offenders do not have a causal connection with the crime.

In this case, touchiness is divided into several types:

1. Concealment (Article 316) – its main feature is considered to be the fact that it was not promised in advance. This behavior is detrimental to solving crimes.
2. Connivance is the deliberate allowance of illegal actions.
3. Failure to report illegal behavior (not provided for by the Criminal Code of Russia, but was present in the Code of the RSFSR - Article 19).

Some scientists and scientists believe that incitement should be considered another type of touching. This distinction is based on the fact that incitement involves inducing one person to another to commit an offense, while the instigator is not actively involved.

But today the list of types of touch is exhaustive.

Punishment for a crime committed in complicity

The law does not provide for additional liability for complicity, therefore the sanction in each specific case is determined by the article under which the actions of the perpetrator fall.

Complicity in a deliberate crime

Complicity is always a deliberate act that is carried out with the aim of realizing the criminal plan of several persons. Each person involved in the case will be punished within the framework of his role based on the article of the Criminal Code of the Russian Federation imputed to the perpetrator.

Complicity in concealing a crime

The law distinguishes 2 types of concealment:

1. Not promised in advance. This means that a person agrees to hide traces of a crime after the perpetrator has committed his dirty deed. The person guilty of concealment does not contribute to the commission of an unlawful act, but only influences its consequences;
2. Promised in advance. The accomplice gives the perpetrator his word to hide the fact of the crime before it happened. Such actions are qualified as complicity in the form of aiding and abetting.

Complicity in a corruption crime

Corruption refers to the abuse by an official (for example, a military man) of his official position, giving or receiving a bribe, and other illegal forms of a person using his official position.

Complicity in the commission of a corruption crime entails liability according to the general rule - according to the article charged to the perpetrator, and depending on the roles of accomplices.

What does judicial practice show under this article?

Judicial practice under this article is extensive and occurs frequently, since crimes often involve not one person, but several. Their responsibility is equal to the degree of participation.

Examples of cases:

1. A group of citizens was detained for kidnapping a child from citizen E. She was in the park when one of the accomplices distracted her with a conversation, the second lured the child, grabbed him and ran to the third, who was waiting in the car. Without delay, we managed to detain all the participants in the crime. In accordance with the law, they were given a punishment: the first, who distracted E., received the mildest, the second, who directly stole the child, received the heaviest.
2. Citizen V., who owned a small store, contacted the police. At night he was robbed and his food and cash register were taken away. Using CCTV cameras, it was possible to identify the group of people who participated in the robbery. They were detained, they agreed to cooperate with the investigation and brought investigators to the customer of the robbery - competitor V. They convicted everyone, the customer received a fine and imprisonment for a year, each of the perpetrators was sentenced to 6 years, except for the one who guarded the robbers - he was given 3 years.
3. In the city of L., a gang was detained that attacked people in the evening and robbed them. The police found them guilty in 25 cases and took the case to court. The punishment was decided according to the participation of each gang member. Those who did not take part in all crimes received 6 years of arrest, active perpetrators - 10 years.

What decisions are most often made under Article 34?

More often, the article makes guilty decisions, since the crime has already been committed or preparations were underway for it. Depending on which member of the group was responsible for what action, the punishment differs. This may be a fine, deprivation or restriction of freedom, forced or other labor, deprivation of the right to engage in activities.

What determines the degree of punishment?

The degree of complicity is directly dependent on the action taken. For example, the helper gives advice, or can remove an obstacle or provide information. Another example: perpetrators and accomplices cannot participate in the murder of the mother of a newborn child, since such qualifications mitigate the circumstances. If a man was involved in the crime, his actions are regarded under Article 105.

Exemption from sanctions

It is provided for in Article 31 (Part 4). An accomplice is not held accountable if he has taken all necessary and dependent measures to prevent the attack. Some authors argue with lawyers who admit the possibility of voluntary refusal by a person participating in an encroachment through a promise given in advance, through passive behavior. To be released from liability, an accomplice must take measures to eliminate the consequences of his actions. Accordingly, the subject who promised in advance to provide assistance must neutralize participation in the crime by returning the word given earlier. This can only be achieved through active actions. Article 33, part 4, of the Model Criminal Code recommends excluding from the list of accused citizens who refused to the perpetrator the assistance promised in advance before the end of the crime or who eliminated the results of the assistance provided.

Complicity in crime

You now know what complicity in a crime is, but to clearly understand the qualifications of the actions of group members, it is necessary to separately consider each of the roles that the legislator identifies.

Types of complicity in criminal law are determined depending on the nature of the actions of the perpetrators of the crime. Each type of complicity complements the next one, and, ultimately, allows you to achieve a criminal goal.

The criminal law distinguishes the following types of accomplices:

• organizer;
• executor;
• instigator;
• accomplice.

The organizer is the person who became the owner of the idea to break the law and supervised the execution process. This type of complicity is considered the most dangerous, since the figure lures other people into criminal activities. The organizer’s function is to prepare a crime plan, select and search for a perpetrator, distribute roles between other participants, and search for the instruments of the crime. In judicial practice, there are often cases when the organizer becomes a co-perpetrator of a violation of the law or does not take an active part at all.

The performer is the person who directly took active actions to achieve the result. The performer may be alone, or may participate as a co-executor along with others. If the punishment is determined, it is the perpetrator who is given the longest sentence for the violation.

An instigator is a person who induces another person to commit an unlawful act. The instigator himself does not take active steps in committing the crime; his function is to arouse the determination of others to commit the unlawful act he desires. He can use threats, blackmail, bribery or ordinary persuasion to achieve his goal.

It is important that the motives and goals of the perpetrator and the instigator may be completely different.

The accomplice creates the conditions for the commission of a crime, his guilt in the crime is determined by the most minor. He can participate in the beginning of a crime at the preparation stage, providing weapons, or during execution, for example, driving a car to the exit. There are even preferential grounds for an accomplice to voluntarily refuse to commit a crime. It is enough for him not to fulfill the duties assigned to him by the organizer, and to interfere with the implementation of the criminal plan.

https://youtube.com/watch?v=aZOr2Z6SloY

The concept and signs of complicity in a crime are very important, because this is the only way to individualize the punishment for a crime. The criminal legislation of the Russian Federation excludes collective liability for an act united by a single intent.

The responsibility of accomplices is determined depending on the degree and importance of the participation of each of them in the commission of the crime. Sometimes the actions of members of the same criminal group can even be classified under different articles. Although, in general, the responsibility of the group members is associated with the responsibility of the performer, who was supposed to translate the collective will into reality. Failure to hold him accountable predetermines the limits of responsibility for the remaining participants. Mitigating and aggravating circumstances are taken into account completely differently; they are imputed only to a specific person and are not imputed to others.

Commentary to Art. 34 of the Criminal Code of the Russian Federation

The basis for criminal liability of accomplices is the commission of an act containing all the elements of a crime provided for by law (Article 8 of the Criminal Code of the Russian Federation). However, in relation to accomplices (except for performers), these signs are not fully defined in the article of the Special Part. Therefore, the actions of the organizer, instigator and accomplice are qualified under the relevant article (its part, paragraph) of the Special Part with reference to the relevant part of Art. 33 of the Criminal Code of the Russian Federation.

If a person, being an organizer, instigator or accomplice, then took part in the commission of a crime as a perpetrator, his act as a whole is qualified as an act of a perpetrator without reference to Art. 33 of the Criminal Code of the Russian Federation.

If a person acts as an instigator and accomplice, his act is qualified with reference to two parts of Art. 33 of the Criminal Code of the Russian Federation (parts 4 and 5). If a person, being the organizer of a crime, performed the functions of an instigator or accomplice, the act is qualified with reference to Part 3 of Art. 33 of the Criminal Code of the Russian Federation as an act of an organizer without specifying part 4 or part 5 of this article.

The law does not provide for mandatory toughening or mitigation of punishment depending on the type of accomplice. When assigning punishment for a crime committed in complicity, when deciding on release from liability or from punishment, the nature and extent of the person’s actual participation in its commission, the significance of this participation in achieving the goal of the crime, its impact on the nature and extent of the caused or possible harm are taken into account. Mitigating or aggravating circumstances related to the personality of one of the accomplices (for example, recidivism) are taken into account when assigning punishment only to this accomplice.

In the science of criminal law, there is a long-standing debate about the legal nature of complicity. Proponents of the accessory theory of complicity believe that accomplices are responsible for the act of the performer (the liability of accomplices seems to them additional to the responsibility of the performer). Opponents of this theory proceed from the fact that accomplices are responsible not for the act of the perpetrator, but for their own acts, regardless of the act of the perpetrator. By studying the law and the practice of its application, one can find arguments both for and against the accessory theory of complicity. In general, it can be stated that accomplices are most likely responsible for their own actions, although certain elements of accessory are present in the existing doctrine of complicity. The strongest argument in favor of the accessory theory of complicity is that the actions of all accomplices are classified equally. There are only a few exceptions to this rule:

a) accomplices are not liable for an act not covered by their intent;

b) when qualifying the act of an accomplice, circumstances that relate to the personality of the other accomplice are not taken into account (for example, the age of the accomplice or the fact that a mother killed her newborn child);

c) when qualifying the actions of organizers, instigators and accomplices, reference is made to Art. 33 of the Criminal Code of the Russian Federation;

d) special rules apply when qualifying complicity, divided by law into different offenses, for example, receiving and giving a bribe.

The accessory theory of complicity is most clearly illustrated by the rule for qualifying incitement to a crime if the crime was stopped at the stage of attempt - the act is qualified with reference not only to Art. 33, but also at Art. 30 of the Criminal Code of the Russian Federation (i.e. as incitement to attempt), although the person did not incite an attempt at a crime, but to commit it. Another argument in favor of the accessory theory: the complicated procedure for the voluntary refusal of accomplices to complete the crime. Thus, an accomplice is obliged not only to withdraw his contribution to the crime, but to take all measures within his power to prevent the crime (Part 3 of Article 31 of the Criminal Code of the Russian Federation). The organizer and instigator, in order to apply the rule of voluntary refusal to them, are completely obliged to prevent the commission of a crime (conscientious actions in this direction are not enough). The accessory understanding of complicity is also supported by the possibility of complicity in a crime with a special subject by a person who does not have the characteristics of a special subject (he cannot be a perpetrator, including in cases of indirect infliction, but can act as an organizer, instigator or accomplice).

At the same time, there are convincing arguments against the accessory understanding of complicity:

a) a single basis for criminal liability enshrined in the law (Article 8 of the Criminal Code of the Russian Federation);

b) the voluntary refusal of the perpetrator does not exclude the responsibility of other accomplices for preparation for the crime;

c) failed incitement is classified as preparation for a crime (successful incitement is also classified if the crime is stopped at the preparation stage);

d) the concept of the perpetrator’s excesses is formulated in the law unjustifiably narrowly; in reality, excesses are also possible on the part of other accomplices (for example, an instigator incites a person to kill a law enforcement officer, inciting jealousy in him, while having the goal of preventing the lawful activities of this officer, unknown to the perpetrator) ;

e) impossibility of complicity after the commission of a crime;

f) the possibility of bringing accomplices to justice before bringing the performer to justice or without bringing the performer to responsibility (for example, if the performer disappeared or died).

Forms and types of complicity

The forms of complicity in a crime are clearly described by Article 33 of the Criminal Code of the Russian Federation. According to its content, the legislator defines two forms of complicity: co-execution and complicity with distribution of roles. Co-execution in criminal law is a form of complicity, where two or more subjects perform the objective side of the crime.

It is important that each of the participants can be recognized as a perpetrator; he commits actions that contain signs of the same violation. From the subjective side, co-perpetrator is characterized by a clear awareness of each of the co-perpetrators that the crime is carried out precisely thanks to his actions

Sometimes the actions of co-perpetrators differ in appearance, but together they determine the composition of the same crime. For example, during rape, one of the attackers may perform sexual intercourse, while the other holds the victim’s hands so that she does not resist.

In legislation, co-executor defines its forms of complicity. They are built according to the increasing degree of public danger:

• Participation in a crime as part of a group of persons - this complicity carries the least danger; to establish a group, it is enough to identify two subjects of the crime.
• Co-execution is reflected as a group without prior agreement or by agreement. In this case, a subjective connection between the participants arises either spontaneously or during the commission of a crime, when one is joined by another. There is no clear hierarchy or distribution of roles, but the participants are united by a common goal and act together to achieve the same goal.
• Organized criminal activity in the form of a criminal organization carries the greatest danger. As a rule, the group includes an organizer who may not take part in the objective side of the crime at all. It is important that when qualifying actions, all group members will be recognized as co-perpetrators, and not individually as an instigator, accomplice, etc.

According to this classification, the punishment for criminals will also become more severe. It should be noted that complicity with the distribution of roles is characterized by the direct commission of active actions to bring the crime to completion by the perpetrator. He carries out the objective side of the crime, and the rest of the group creates favorable conditions for this. According to this form of complicity, each of the participants has their own specific role; sometimes they do not even know about the actions of other people, but they are sure that they are not acting alone.

Types of accomplices

Note!

If the attacker acted together with people who are not subject to criminal prosecution due to objective reasons (young age, incapacity), the court recognizes him as the sole perpetrator.

The legislator identifies several groups of accomplices in a criminal act depending on the roles they perform:

1. Executor. This is the person who brought the criminal plan to life. If there are several such persons, their actions are qualified as co-execution.
2. Organizer. This person involved comes up with a plan for the crime, develops ways and methods of committing it, organizes a suitable situation and directs the actions of the perpetrators. The organizer will also be a person who formed a group of attackers, but did not personally take part in the implementation of the plan.
3. Instigator. This is the ideological mastermind who convinced the rest of his accomplices to break the law. Methods of influence can be very diverse: from persuasion and promises of “golden mountains” to open threats. The method by which the instigator achieved his goal is not particularly important for the qualification of a criminal act.
4. Accomplice. He does not take part in the act itself, but helps the other defendants. Help may include:

• providing accomplices with information useful for the implementation of a criminal plan (for example, about the victim’s place of residence);
• searching for ways, means, instruments to commit a crime (for example, buying a pistol);
• promises to hide the perpetrator and cover up traces of what he had done;
• a promise to sell or hide the loot.

Plurality of crimes concept, forms and criminal legal meaning.

The plurality of crimes is understood as the commission of several crimes by one person, each of which is provided for by a criminal law norm and retains its criminal legal significance.

The multiplicity of crimes is characterized by the following features:

– acts constituting plurality are committed by one person;

– for plurality, at least two crimes must be committed;

– these crimes must retain their criminal legal significance.

The Criminal Code distinguishes between two forms of plurality:

– a set of crimes;

– relapse of crimes.

Recidivism of crimes is the commission of an intentional crime by a person who has a criminal record for a previously committed intentional crime.

Relapse can be of three types:

- simple;

- dangerous;

- especially dangerous.

Recidivism of crimes is considered dangerous:

– when a person commits a serious crime for which he is sentenced to real imprisonment, if earlier this person was sentenced to imprisonment two or more times for an intentional crime of average gravity;

– when a person commits a serious crime, if he was previously convicted of a serious or especially serious crime to actual imprisonment.

Recidivism of crimes is considered especially dangerous:

– when a person commits a serious crime for which he is sentenced to real imprisonment, if previously this person was twice sentenced to real imprisonment for a serious crime;

– when a person commits a particularly serious crime, if he was previously convicted of a serious crime twice or was previously convicted of a particularly serious crime.

Relapse:

– is an aggravating circumstance;

– influences the appointment of a type of correctional institution for those sentenced to imprisonment;

– the term of punishment for any type of recidivism of crimes cannot be less than one third of the maximum term of the most severe type of punishment provided for the crime committed, but within the sanction of the corresponding article of the Special Part of the Criminal Code of the Russian Federation.

Aggregate crimes – the commission of two or more crimes by one person, provided that none of them has a criminal record expunged or the person has not been convicted for any of them.

Types of crimes:

– ideal set;

– real totality.

A real totality of crimes is the commission of two or more crimes, for none of which the person was convicted

It does not matter whether the crimes were committed intentionally or through negligence, whether they were completed or not, whether they were committed in complicity, etc.

In case of aggregation of crimes, a person bears criminal liability for each crime committed under the relevant article or part of an article of the Criminal Code of the Russian Federation.

An ideal set is one action (inaction) containing signs of crimes provided for by two or more articles of the Criminal Code of the Russian Federation. The totality of crimes serves as the basis for imposing a more severe punishment. In case of aggregation of crimes, the punishment is assigned separately for each crime committed, and then added up in whole or in part.

Criminal legal consequences of plurality.

The plurality of crimes has a number of legal consequences:

a) the commission of legally single-objective and multi-objective crimes is in a number of cases a sign of aggravating circumstances (clause “b”, part 2 of article 158 - repeated commission of theft) or under especially aggravating circumstances (clause “c”, part 3 Article 158 – theft by a person who has been previously convicted two or more times for theft or extortion);

b) changes the classification of the crime: one murder out of jealousy is classified under Part 1 of Art. 105 of the Criminal Code, and two murders for the same motive - under paragraph “a” of Part 2 of Art. 105 CC;

c) acts as a circumstance that enhances punishment;

d) when imposing a sentence of imprisonment, it influences the type of correctional institution: persons who have previously served a sentence of imprisonment are assigned a strict regime correctional colony, and in appropriate cases, a prison (Article 58 - assignment of a type of correctional institution to those sentenced to imprisonment );

e) certain crimes can be committed only after the commission of some crimes earlier - Art. 313 (escaping from a place of imprisonment, arrest or custody)

Qualification of the act of an accomplice to a crime

Qualification of the act of the organizer of the crime

Criminal liability of the organizer arises under the article providing for punishment for the crime committed with reference to Art. 33 of the Criminal Code, except for cases when they were simultaneously co-perpetrators of the crime (Part 3 of Article 34 of the Criminal Code). Of fundamental importance for qualifying the act of the organizer of a crime is a set of rules enshrined in Parts 5 and 6 of Art. 35 of the Criminal Code: a person who created an organized group or criminal community (criminal organization) or led them is subject to criminal liability for their organization and management in cases provided for in Articles 208, 209, 210 and 282.1 of this Code, as well as for all crimes committed by the organized group or criminal community (criminal organization) of a crime, if they were covered by its intent. Other participants in an organized group or criminal community (criminal organization) bear criminal liability for participation in them in cases provided for in Articles 208, 209, 210 and 282.1 of this Code, as well as for crimes in the preparation or commission of which they participated. In cases not provided for in the articles of the Special Part of the Criminal Code, the creation of an organized group entails criminal liability for preparation for the crimes for which it was created.

Creation of a criminal community (criminal organization) for the purpose of jointly committing one or more grave or especially grave crimes, or management of such a community (organization) or its structural units, as well as coordination of criminal actions, creation of stable ties between various independently operating organized groups, development of plans and creation of conditions for the commission of crimes by such groups or division of spheres of criminal influence and criminal proceeds between them, committed by a person using his influence on members of organized groups, as well as participation in a meeting of organizers, managers (leaders) or other representatives of organized groups in order to commit at least one of these crimes, Art. 210 of the Criminal Code and are qualified under this article without any reference to the norms of the institution of an unfinished crime. Such acts are classified as especially serious crimes with a clearly expressed formal structure; and form a real totality with crimes committed by members of the named community, if they were covered by the intent of its organizer.

Qualification of the act of an instigator of a crime

The criminal liability of the instigator comes under the article providing for punishment for the crime committed, with reference to Art. 33 of the Criminal Code, with the exception of cases where the instigator was also the perpetrator of the crime (Part 3 of Article 34 of the Criminal Code).

Qualification of the act of an accomplice to a crime

The criminal liability of an accomplice comes under the article providing for punishment for the crime committed, with reference to Art. 33 of the Criminal Code, with the exception of cases where the instigator was also the perpetrator of the crime (Part 5 of Article 34 of the Criminal Code).

Example: K., Sh. and D., by prior agreement among themselves, having distributed the performing roles, broke down the door of someone else’s apartment, entered the home and stole things worth a large sum, and B., knowing about the criminal intentions of the group of these persons, delivered them to car to the place of theft, waited for them to return with the stolen property and took the property. The Supreme Court of the Russian Federation, having published a publication on this topic in its official publication, stated that what B. did was wrongly qualified by the court of first instance under paragraph “c” of Part 3 of Art. 158 of the Criminal Code and that the actions of persons who were aware of the purposes of theft and assisted them in transporting them to the scene of the crime and back, but did not provide assistance in directly entering the home or confiscating property, are subject to qualification as complicity in the form of aiding and abetting, i.e. with reference to Part 5 of Art. 33UK.

The criminal liability of an accomplice comes under the article providing for punishment for the crime committed, with reference to Part 5 of Art. 33 of the Criminal Code, with the exception of cases where the accomplice was also the perpetrator of the crime (Part 3 of Article 34 of the Criminal Code).

If the accomplice did not directly participate in the commission of a crime, and the perpetrator of this crime is in the singular, what he did cannot be qualified as committed by a group of persons by prior conspiracy.

Kh. was found guilty and convicted under points “a”, “b” and “d” of Part 2 of Art. 158 of the Criminal Code for theft committed by a group of persons by prior conspiracy with illegal entry into the storage facility and causing significant damage to the victim, namely that, by prior agreement with S., he secretly stole an expensive battery from a car belonging to D. and sold it. The Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation, having considered this case in a supervisory manner, excluded from the verdict the qualifying feature provided for in paragraph “a” of the said article of the Criminal Code, and pointed out an error made in the qualification of the crime by the lower courts. It consisted in the fact that S., who was convicted in this case of complicity, only suggested to Kh. where the battery could be stolen and explained how this could be done, for which he was convicted as an accomplice in this criminal case. S. did not directly participate in the commission of the theft, therefore this theft cannot be qualified as committed by a group of persons by prior conspiracy.

The institution of complicity in a crime according to Savelyeva V.S. was and remains one of the most complex objects of scientific-theoretical knowledge and practical application. Despite the fact that scientists, legislators, and the Supreme Court of the Russian Federation pay constant attention to it, in its practical application and qualification of crimes committed in complicity, there are still complex issues and controversial decisions. So, for example, according to paragraph 12 of the resolution of the Plenum of the Supreme Court of the Russian Federation dated February 10, 2000 No. 6 “On judicial practice in cases of bribery and commercial bribery,” an official or person performing managerial functions in a commercial or other organization who offered a subordinate to him service, an employee in order to achieve the desired action (inaction) in the interests of his organization, to give a bribe to an official, is liable under the relevant part of Art. 291 of the Criminal Code of the Russian Federation (giving a bribe), and the employee who carried out his instructions as an accomplice in giving a bribe. And an official or a person performing managerial functions in a commercial or other organization, who proposed to an employee subordinate to him in service, in order to achieve the desired action (inaction) in the interests of his organization, to transfer money, securities, etc. to the person performing managerial functions in a commercial or other organization property is liable under Part 1 or Part 2 of Art. 204 of the Criminal Code of the Russian Federation (commercial bribery) as the perpetrator of the crime, and the employee who carried out his instructions - as an accomplice in commercial bribery.

According to scientist Savelyeva V.S. These explanations are not accurate enough and are controversial from the standpoint of the criminal legal theory of complicity. The essence of this situation is that one official or manager bribes another official, and the essence of the other is that an official or manager bribes another manager, with the help of a subordinate, and in both cases - in the interests of his organization. The Plenum calls one of those participating in bribery, namely the one who initiates it, the perpetrator of the crime (bribe, commercial bribery), and his subordinate, who directly carries out the bribery plan and transfers the subject of the bribe (commercial bribery), as an accomplice to these crimes. This is unclear and appears to be controversial. Firstly, the perpetrator did not commit the crime; he only “offered” (the terminology of the resolution of the Plenum) to carry it out, in other words, to carry it out to his subordinate, i.e. a person in a dependent position. The latter is called an accomplice in the crime, which is already clear, but about the most important thing, i.e. nothing is said about what type of complicity we are talking about. Meanwhile, it is obvious that the role of both actors is significantly different, and here from the perspective of the theory of complicity there is a problem that has not been solved.

3. Classification of crimes depending on the form of complicity

a) qualification of crimes committed by a group of persons;

b) qualification of crimes committed by a group of persons by prior conspiracy;

c) qualification of crimes committed by an organized group;

d) qualification of crimes committed by a criminal organization.

Even in pre-revolutionary law, the question of the types and forms of complicity was one of the most complex and ambiguously resolved. A certain reason for this was the fact that until now criminal legislation does not use such terms.

The distinction between types of complicity has significant legal significance. In particular, it makes it possible to justify the responsibility not only of the performer, but also the responsibility of other accomplices. In addition, depending on the type of complicity, the rules for qualifying their actions are determined.

The basis for identifying types of complicity is the criterion of the functional roles performed by the accomplices, i.e. the absence or presence, in addition to co-executors, of other types of accomplices. On this basis, simple complicity, or co-execution, can be distinguished (in which all persons, without exception, jointly participating in the commission of a crime are co-perpetrators), and complex complicity (in which, along with the perpetrator (co-perpetrators), there are an organizer, instigator and (or) accomplice).

Identifying the types of complicity is important when qualifying a crime committed in complicity. In case of simple complicity, the actions of all accomplices are qualified only under the article of the Special Part of the Criminal Code, which provides for liability for the crime they committed, and if such article provides a qualifying sign of the commission of a crime by a group of persons, a group of persons by prior conspiracy or an organized group, then with the imputation of this qualifying element sign (Part 2 of Article 34 of the Criminal Code).

In case of complex complicity, the actions of the performer (co-executors) are qualified similarly to simple complicity. The actions of the organizer, instigator, accomplice are qualified accordingly under Parts 3, 4, 5 of Art. 33 of the Criminal Code and under the article of the Special Part of the Criminal Code, which provides for liability for the crime committed by them (with the imputation, if there are co-perpetrators, and if the article of the Special Part of the Criminal Code also indicates a qualifying sign of a group commission of a crime). Links to Art. 33 of the Criminal Code in relation to the actions of an organizer, instigator, accomplice is not required if, at the same time as they perform organizational, instigating and aiding functions, they are co-perpetrators of a crime (Part 3 of Article 34 of the Criminal Code).

If a person in a crime simultaneously performed the roles of instigator and accomplice, then his actions are qualified once under Part 4, 5 of Art. 33 of the Criminal Code and under the article of the Special Part of the Criminal Code, which provides for liability for the crime committed.

Analysis of modern criminal law literature allows us to summarize the following proposed classification forms of complicity: a) complicity without prior agreement and complicity with a preliminary agreement (group of persons by prior conspiracy, organized group, criminal community (criminal organization); b) complex complicity, co-perpetrator, criminal group, criminal community; c) a group of persons without prior agreement, a group of persons by prior agreement, an organized group, a criminal community (criminal organization) Criminal law course. Volume 1. General part. The Doctrine of Crime (edited by Doctor of Law, Professor N.F. Kuznetsova, Candidate of Law, Associate Professor I.M. Tyazhkova) - M.: IKD "Zertsalo-M", 2002.

When qualifying criminal acts committed by persons in these forms of complicity, it is necessary to keep in mind the following. If an article of the Special Part of the Criminal Code, providing for liability for a crime committed, contains a qualifying sign of the commission of a crime by a group of persons, a group of persons by prior conspiracy, an organized group, then the actions of both co-perpetrators and other accomplices who committed the crime as part of the corresponding group are subject to qualification with imputation this qualifying attribute. The absence of such a qualifying feature in the article of the Special Part of the Criminal Code entails the classification of the act according to the main elements of the crime (in the absence of other qualifying features), however, there is an aggravating circumstance provided for in paragraph “c” of Part 1 of Art. 63 of the Criminal Code.

Indication in the article of the Special Part of the Criminal Code to a more dangerous type of criminal group (for example, to an organized group in paragraph “a” of Part 2 of Article 171, Part 3 of Article 186 of the Criminal Code) in the event of a crime being committed by a less cohesive group (in this example - by a group of persons by prior conspiracy) in the absence of other qualifying characteristics entails qualification of the act according to the main elements of the crime. On the contrary, an indication in the article of the Special Part of the Criminal Code of a less dangerous type of criminal group (for example, a group of persons by prior conspiracy in paragraph “a” of Part 2 of Article 199 of the Criminal Code) in the event of a crime being committed by a more cohesive group (in this example, an organized group) entails the qualification of the act on the basis of the commission of a crime by a group of persons by prior conspiracy.

To properly qualify a crime, it is necessary to clearly distinguish between these forms of complicity.

1. A group of persons without prior agreement. According to Part 1 of Art. 35 of the Criminal Code, a crime is recognized as committed by a group of persons if two or more perpetrators jointly participated in its commission without prior conspiracy. This differs from all other forms of complicity in the absence of prior agreement, i.e. spontaneity, the suddenness of the emergence and implementation of intent to commit a crime. By virtue of the direct instructions of the law, a mandatory feature of a group of persons without prior conspiracy is the presence of two or more co-perpetrators (in this case, what was said earlier about the “group execution of a crime” should be taken into account); aiding and abetting a single perpetrator in the commission of a crime (incitement to commit it) does not constitute this form of complicity.

Due to the suddenness of criminal acts, a group of persons without prior conspiracy is mainly encountered as a type of simple complicity. Nevertheless, complex complicity is also possible here, when in the process of carrying out a criminal offense the co-perpetrators have an accomplice (in even more rare cases, an instigator) or when a crime committed in complex complicity is the result of a sudden modification of the original plan.

2. A group of persons by prior conspiracy.

In Part 2 of Art. 35 of the Criminal Code states that a crime is recognized as committed by a group of persons by prior conspiracy if it involved persons who had agreed in advance to jointly commit a crime. Preliminary conspiracy to commit a crime (as it is defined, for example, in paragraph 9 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of December 27, 2002 N 29 “On judicial practice in cases of theft, robbery and robbery”) presupposes expressed in any form ( written, oral, conclusive) agreement that took place before the start of the direct execution of the objective side of the crime.

In judicial practice (for example, paragraph 12 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of December 27, 2002 N 29 “On judicial practice in cases of theft, robbery and robbery”) it is considered that the constitutive feature of a group of persons by prior conspiracy is the presence of two and more co-perpetrators (in this case, one should take into account what was said earlier about the “group execution of a crime”).

A group of persons in a preliminary conspiracy can refer to both simple and complex complicity.

3. Organized group.

A distinctive feature of an organized group (Part 3 of Article 35 of the Criminal Code), which allows it to be separated from a group of persons by prior conspiracy, is stability. Stability can be evidenced by such signs as the stability of the group, the close relationship between its members, the coordination of actions and their planning, the presence of recognized leadership, the constancy of the forms and methods of criminal activity, technical equipment, the duration of the group’s existence, the number of crimes it has committed, etc. Resolution of the Plenum of the Supreme Court of the Russian Federation of January 17, 1997 No. 1 “On the practice of application by courts of legislation on liability for banditry” // BVS RF. 1997. N 3; clause 15 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of December 27, 2002 No. 29 “On judicial practice in cases of theft, robbery and robbery.” . At the same time, the law does not exclude the creation of an organized group of only two persons and for the commission of one crime, but requiring careful preparation.

The particular social danger of crimes committed by an organized group has led to the development by judicial practice of a rule according to which the actions of all members of an organized group, regardless of their role in the crime, are qualified as co-perpetrators. In particular, as stated in paragraph 15 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of December 27, 2002 No. 29 “On judicial practice in cases of theft, robbery and robbery”, when recognizing theft, robbery or robbery “committed by an organized group, the actions of all accomplices Regardless of their role in the crime, they are subject to qualification as co-perpetrator without reference to Article 33 of the Criminal Code of the Russian Federation.”

At the same time, this rule is not unconditional: in some cases, situations of incitement or complicity in connection with the commission of a crime by an organized group are possible. Such actions are committed by persons external to the organized group, i.e. not part of it, although they assist in its criminal activities. As stated in paragraph 15 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of December 27, 2002 No. 29 “On judicial practice in cases of theft, robbery and robbery”, “if a person incited another person or group of persons to create an organized group to commit specific crimes , but did not directly participate in the selection of its participants, planning and preparation for committing crimes (crimes) or in their implementation, his actions should be qualified as complicity in the commission of crimes by an organized group with reference to part four of Article 33 of the Criminal Code of the Russian Federation.”

The very creation of the most dangerous type of organized group - a gang - is criminalized by the legislator in Art. 209 of the Criminal Code, and the creation of an organized group in other cases entails criminal liability for preparation for the crimes for which it was created (Part 6 of Article 35 of the Criminal Code).

4. Criminal community (criminal organization)

The main features characterizing a criminal community (criminal organization), the legislator calls a cohesive organized group and the purpose of committing serious and especially serious crimes. The distinctive features of an organized group are:

a) cohesion, i.e. the presence of common goals among members of the organization, intentions that turn them into a single whole, the presence of well-established connections, organizational and management structures, a financial base, a single cash register from contributions from criminal activities, conspiracy, a hierarchy of subordination, uniform and strict rules of relationships and behavior with sanctions for violation of the unwritten charter of the community, a special criminal-cultural community, etc.;

b) organization, i.e. a clear distribution of functions between accomplices, careful planning of criminal activities, the presence of strict internal discipline;

c) the purpose of creation is to commit grave and especially grave crimes.

These characteristics are also given a lot of attention from the point of view of the difficulties that arise when using these formulations in practice.

In particular, the concepts of sustainability and cohesion are virtually identical and imply each other. Sustainability is impossible without cohesion, and vice versa.

The imperfection of legislative structures gives rise to numerous disputes about the signs of forms of complicity in organized criminal activity and the problem of qualifying the acts of accomplices.

4. Responsibility and qualification of actions of accomplices in various forms of complicity:

a) the basis and limits of liability of accomplices;

b) dependence of the liability of accomplices on the actions of the performer;

c) qualification of actions of accomplices in various forms.

A) Complicity in a crime as a special form of criminal activity is more socially dangerous compared to the criminal actions of one person. However, the criminal law does not establish any special grounds for criminal liability for complicity. The basis for criminal liability, including accomplices, is the commission of a socially dangerous

an act containing elements of a crime (Article 8 of the Criminal Code). However, the liability of accomplices has its own characteristics, established in the norms of the General and Special Parts of the Criminal Code.

The starting position for understanding the essence of these features is the norm contained in Part 7 of Art. 35 of the Criminal Code, according to which a crime committed by a group of persons, a group of persons by prior conspiracy, an organized group or a criminal community (criminal organization) should entail a more severe punishment on the basis and within the limits provided by law. But this provision does not exclude the principle of individualization of punishment. Any accomplice must be held accountable only for his own actions and within the limits of his guilt. Therefore, the liability of accomplices is determined by the nature and degree of actual participation of each of them (Part 1 of Article 34 of the Criminal Code). The qualification of their actions depends on the form of complicity and the role they played in the commission of the crime.

The law establishes four forms of complicity and, in relation to them, determines the grounds and limits of liability of accomplices.

The first form of complicity - complicity with the performance of various roles involves the criminal liability of each accomplice depending on the role that he performed. If the accomplice carried out (in whole or in part) the objective side of the crime, i.e. was the perpetrator, then his actions are qualified according to the norm of the Special Part of the Criminal Code, which provides for liability for this crime. Link to Part 2 of Art. 33 of the Criminal Code is not required. Mediocre perpetrators and co-perpetrators of a crime are responsible in the same way (Part 2 of Article 34 of the Criminal Code).

When accomplices do not directly participate in the execution of the objective side of the crime, but only help him or create conditions in another way for the commission of a crime, acting as an organizer, instigator or accomplice (Part 3 of Article 34 of the Criminal Code), then their actions are qualified under the Special Article part of the Criminal Code and the corresponding part of Art. 33 of the Criminal Code. The objective side of their criminal activity is made up of the characteristics specified in the norms of the General and Special Parts of the Criminal Code.

Despite the fact that accomplices are responsible for their independent actions, the qualification of their actions still depends on the actions of the performer. If the perpetrator does not complete a crime planned together with other accomplices for reasons beyond his control, he is held accountable for attempt or preparation (if the planned crime was serious or especially serious). Other accomplices will also be respectively responsible for preparing or attempting a crime (Part 5 of Article 34 of the Criminal Code). For example, an apartment burglary was planned, but the perpetrator of the crime failed to complete it; he was detained by the owner of the apartment at the time of confiscation of valuables. The actions of the performer are qualified under Part 3 of Art. 30 and part 3 of Art. 158 of the Criminal Code (attempted theft of someone else's property with penetration into the victim's home). The organizer of this crime, who did not directly participate in the attempted theft, must be held accountable under Part 3 of Art. 33, part 3 art. 30 and part 3 of Art. 158 of the Criminal Code. If the organizer of the crime simultaneously supervised the commission of the crime during its execution and was detained together with the perpetrator at the crime scene, then he is a co-perpetrator of the crime. Both criminals will be held criminally liable for attempted theft by a group of persons by prior conspiracy, with illegal entry into a home (under Part 3 of Article 30 and paragraph “a” of Part 2 and Part 3 of Article 158). The fact that one of the co-perpetrators was at the same time the organizer of the crime will be taken into account by the court when imposing punishment with reference to paragraph “d” of Part 1 of Art. 63 of the Criminal Code.

Special mention should be made of the instigator. If he failed to persuade another person to commit a crime, for example, to commit murder, then his actions should be qualified as preparation for murder, in the form of finding accomplices in the crime (Part 1 of Article 30 and Part 1 of Article 105 of the Criminal Code).

When a crime is committed by a special subject, the characteristics of which are indicated in the norm of the Special Part of the Criminal Code, all other participants in the crime who do not have the special characteristics of a subject can be brought to criminal liability only as an organizer, instigator or accomplice, even if any of them them was an actual co-perpetrator of the crime (Part 4 of Article 34).

The second form of complicity, co-execution, suggests the simplest way to solve the problem of criminal liability of accomplices. The actions of co-executors are qualified only under the article of the Special Part of the Criminal Code, without reference to Art. 33 or 35 (part 2 of article 34). The legal assessment of co-execution of different types (a group of persons without prior agreement and a group of persons with prior agreement) is different. Co-execution as a group commission of a crime without prior conspiracy is provided for as aggravating circumstances in the provisions of the Special Part of the Criminal Code (for example, clause “g”, part 2 of article 105; clause “a”, part 3 of article 111). In the case where in the norms of the Special Part of the Criminal Code there are no signs of a group crime, then the actions of the perpetrators must be qualified under Part 1 of the Article of the Special Part of the Criminal Code, and when imposing punishment, the court, referring to paragraph “c” of Part 1 of Art. 63, will take this circumstance into account as an aggravating one.

The commission of a crime by a group of persons by prior conspiracy is also identified as qualifying criteria in the norms of the Special Part of the Criminal Code. The list of such norms is broader than the first type of co-execution. It includes most crimes against property, some crimes against the person, in the field of economic activity, crimes against public safety and public order. Actions of group participants by prior conspiracy are qualified according to the norms of the Special Part of the Criminal Code without reference to Part 2 of Art. 35 of the Criminal Code.

The criminal liability of accomplices in the third and fourth forms of complicity: members of an organized group or criminal community (criminal organization) is also established in the norms of the Special Part of the Criminal Code.

An organized group as a qualifying circumstance is indicated in a significant number of norms providing for criminal liability for crimes against property, in the field of economic activity, against public safety and public order. In two cases provided for in Art. 209 and art. 239 of the Criminal Code, an organized group forms signs of an independent crime. Articles 209 and 239 of the Criminal Code establish liability for the very fact of organizing a gang or religious or public association, the activities of which involve causing harm to individuals and encroaching on the rights and freedoms of citizens. The actions of the perpetrators must be qualified accordingly under these articles. In cases where the commission of a crime by an organized group is not provided for in the norms of the Special Part of the Criminal Code, then criminal liability for group members occurs according to the rules provided for the first form of complicity. The very fact of creating such a group can be considered as preparation to commit the crime for which it was created (Part 6 of Article 35 of the Criminal Code).

Responsibility for organizing and participating in a criminal community (criminal organization) is established as independent crimes in Art. 208, 210 and 279 of the Criminal Code.

Part 5 Art. 35 of the Criminal Code determines the limits of criminal liability of organizers and leaders of organized groups or criminal organizations, as well as ordinary participants in these criminal associations. Organizers and leaders are subject to criminal liability for the fact of creating these criminal associations. In Art. 208, 209, 210, 239 and 279 of the Criminal Code, this type of criminal activity is recognized as an independent crime, regardless of whether crimes were committed that were the goal of this criminal association. The actions of organizers and managers are qualified under these articles without reference to Art. 35 of the Criminal Code. In addition, they are subject to liability for all crimes committed by other members of a criminal group or criminal community, if these crimes were covered by their intent. Therefore, the actions of the organizers and leaders will be classified in these cases as a combination of crimes.

Ordinary participants bear criminal liability for participation in an organized group or criminal community, regardless of its specific role, with the exception of those persons who participated directly in the commission of crimes.

The actions of such participants are also classified according to a set of crimes: under the article providing for liability for participation in an organized group or criminal community and under the articles of the Special Part of the Criminal Code, providing for liability for those crimes of which the participant was found guilty.

5. The importance of motive and purpose for qualifying the actions of accomplices, features of voluntary refusal in case of complicity.

Voluntary refusal of accomplices means that one or more accomplices stops performing those actions that they are obliged to perform by virtue of their role, realizing the possibility of completing them. Voluntary refusal must be characterized by signs of voluntariness and finality. Voluntary refusal is a circumstance that excludes the criminal liability of accomplices, if the act before the decision to refuse does not contain signs of another crime.

Voluntary refusal of accomplices is possible in any form of complicity, at any stage of the crime, but necessarily before the criminal result occurs. Voluntary refusal by the organizer and instigator can be made only in an active form, when their actions (by virtue of reporting to the authorities, warning the victim, stopping the performer, including through physical force) did not allow the performer to fulfill his plans. The obligation to prevent the commission of a crime is a condition for the voluntary refusal of the organizer or instigator. If such actions of the organizer or instigator did not lead to the prevention of the commission of a crime by the perpetrator, then the measures taken by them may be recognized by the court as mitigating circumstances.

An accomplice can carry out voluntary refusal both through action (notifying the authorities about an impending crime, warning the victim, taking away previously provided instruments or means of committing a crime), but it is also possible through inaction (failure to report information about the daily routine of the alleged victim, not transferring the weapon of the crime). The legislator emphasizes that the accomplice must take all measures within his power and neutralize what he contributed to the perpetrator. The accomplice cannot limit himself to not performing the promised actions. He must inform the performer about this. Thus, it is enough for accomplices to take all necessary measures to prevent the crime. His refusal will be recognized as voluntary, and even if these measures were not successful and the crime was committed by the perpetrator

6. Special issues of participation and their impact on qualifications.

SPECIAL ISSUES OF LIABILITY OF ACCELERATES IN A CRIME

Establishing the grounds and limits of liability does not exclude the emergence in judicial practice of other special issues of liability of accomplices, determined by the characteristics of the subject, the stages of the crime, voluntary refusal, etc. All these circumstances are important for qualifying the actions of accomplices.

1

The influence of complicity on punishment, responsibility

Guilt is considered as a more serious type of crime compared to the acts of persons committing atrocities alone.

It is noted that the basis of complicity is not simply the unification of the efforts of several culprits, but the addition of their capabilities to give actions a new level. With this approach to crime, in most cases it is possible to cause more serious consequences.

At the same time, there is another opinion. Some lawyers believe that involvement cannot be a circumstance to mitigate or aggravate liability. Also, it cannot serve as a qualifying feature. In this case, the statement that involvement is the reason for increasing public danger is not true.

In practice, the fact of joint commission of an offense does not entail additional grounds for prosecution. The general principles of Russian criminal law apply. That is, attraction occurs in the general manner, if there is corpus delicti in a person’s actions.

According to their role in the crime, accomplices are divided into:

• organizer;
• instigator;
• accomplice;
• performer.

Each accomplice bears the burden of responsibility according to his position in the criminal hierarchy.

Lawyers, in their comments to this chapter, often highlight the fact that the norms of Chapter 7 of the Criminal Code do not have an impact on the norms of the special part, which contain a clause on the implementation of an atrocity by a group of persons. In this case, the principle of universality of the norms of the general part is limited. If an activity falls under the characteristics of a special part, it is qualified only according to it.

Forms

The criminal legislation of Russia provides for various variations of interaction between subjects whose intention is to jointly commit a crime. The set of characteristic features that unite types of connections into separate groups constitutes forms of involvement.

These signs include:

1. Feature of the association.
2. System of interaction between participants.
3. Level of organization.
4. Distribution of individual functions.

The qualification of criminal behavior depends on the form. This is a mandatory criterion for determining liability and its limits.

Classification is based on an objective criterion. The nature and method of communication between accomplices and the qualifications of their actions are taken into account.

Based on these facts, specific forms of involvement are identified based on the norms of the Criminal Code:

• simple (the number of criminals is equal to the number of perpetrators);
• complex;
• organized association;
• community.

The essence of simple co-perpetration is characterized by the presence of several persons committing a crime in a group. An example would be robbery - one of the criminals threatens a person with a knife, while the other takes away valuables.

In such a situation, both types of conspiracy may be present, that is, both preliminary and in the process of the crime. In principle, conspiracy is not necessary for these offenses. But its absence will lead to the impossibility of complicity.

If a preliminary conspiracy is recognized as an illegal act, it is qualified according to the norms of the special part; Article 33 of the Criminal Code of the Russian Federation is not mentioned.

Complex culpability is indicated for those crimes in which one person or some part of the group is actively involved, while all other accomplices are doing other work (for example, standing on guard, coordinating, covering or getting rid of traces).

A group whose main feature is stability is called organized. This is an association of persons whose goal is to commit a certain number of illegal acts. It is created in advance through conspiracy and can be directed towards the implementation of one act or towards the criminal sphere as a whole. Also, this type of crime is the only one in which all types of connections between accomplices can be present.

To be recognized, a group must meet the following conditions:

1. Sustainability.
2. Availability of an organizer.
3. Increased bond strength.
4. Cohesion of participants.
5. Great degree of danger.
6. Criminal skills of accomplices.
7. Duration of existence.
8. Availability of special means.
9. Distribution of duties.
10. A precise behavior pattern has been formulated.

In some situations, the very creation of an organized criminal association can serve as a reason for persecution. The fact of illegal activity does not matter here. For example, the Criminal Code of the Russian Federation recognizes the organization of an armed criminal association as banditry (Article 209).

A community should be understood as an organization of several criminal associations. Such a community seems to be the most dangerous form of involvement and sometimes numbers several dozen criminals or more. In some situations it may have an international scope. Community always serves as a basis for criminal prosecution.

Rules for sentencing

The imposition of punishment for the implementation of criminal intent as part of a community of persons is more severe, since complicity is considered an aggravating circumstance. Based on the individual role and involvement in the objective part of the crime, retribution is diversified based on the following considerations:

• The one whose participation was the most active and dangerous is subject to harsher punishment; this can be not only the perpetrator, but also the one who organized or instigated the implementation of the intent;
• mitigating circumstances are applicable on an individual basis, based on behavior during the crime, after it and during the investigation and trial in court;
• in the absence of factors dictating the need for a more loyal attitude towards individual accomplices, responsibility is equivalent.

If, during the implementation of the plan, the performer deviates from it and implements an additional act that has individual objective characteristics, then the accomplices do not bear responsibility for it, and such a phenomenon is called the excess of the performer.

The following video will tell you more about the performer’s excesses:

Signs

The presence of objective and subjective signs is the basis of ownership. If a person’s actions lack any of them, the crime of complicity is not recognized.

Objective properties include:

1. Committing illegal actions by two or more persons. In this case, all perpetrators must be legally competent. If criminals use an insane person or a minor for their own purposes, it cannot be considered committed jointly. The Criminal Code defines actions the implementation of which is possible only if there is a large group of participants. An example is the following articles: 212 of the Criminal Code of the Russian Federation “Mass riots”; 278 “Forcible seizure of power”; 279 “Armed rebellion.”
2. Community in achieving a criminal goal, as well as mutual responsibility of criminals for each other. The independence of criminals contradicts culpability. For example, if several robbers commit a theft, but they do not cooperate with each other and act at the same time, but separately, there cannot be cooperation.
3. The result of criminal activity is the same for all accomplices. With a formal composition, the relationship between the work of all participants and the performer is established. In material terms, it is the sequence of actions of each criminal that led to consequences. In a situation where a person gave a gun to the killer, he is considered an accessory to murder only if the death was caused by a shot from that weapon.

Subjective signs of complicity in a crime:

• awareness of the participating persons about each other and the role of each (performer, accomplice, own); Awareness by accomplices of joint execution of a specific offense. The wrongfulness of one's own and others' behavior. Knowing each of the group members is not necessary. The main thing is to understand that a certain action occurs through the efforts of different people.
• the presence of a single intent - the direction of activity towards one crime. The difference in motives and objectives does not matter. So, when ordering the murder of someone, the killer’s motive is profit, while the goal of the customer may be different (revenge, anger, hatred).

Usually, complicity is characterized by activity, but this does not exclude the possibility of co-ownership through inaction. An example of this is the refusal to perform official duties by a security officer in agreement with robbers, whose goal is theft in a protected area.

The legislation of the Russian Federation regulates complicity committed only with direct intent.

However, in theory there is a possibility of negligence.

Complicity is possible in the implementation of ongoing and ongoing offenses

Moreover, what stage the execution is at is not important. The exception is a preliminary promise to hide traces of the case

General information

The solidary efforts of a community of people, directed in a criminal direction, represent a more significant threat to social ideals and are subject to appropriate retribution, since they are capable of causing a proportionately increased amount of harm and damage. Uniting in the unity of awareness of the need to violate the norms of legality, criminal actors oppose themselves to society in striving to achieve a common illegal goal due to homogeneous or different considerations and motives.

Focus on a single result turns people, notified of the potential occurrence of consequences undesirable for society and/or its selected members, into accomplices, regardless of the desires and aspirations that drive each of them. Since a joint criminal act in relation to a single subject or object, but in an independent form, removes it from the category of complicity, support for each other’s desires is considered necessary, at least to a small extent.

A clear example from practice is the looting of a warehouse or store with valuables, carried out by several persons who are unfamiliar and competing with each other in achieving their own goals in the projection onto a single object of crime.

Basic information on the issue of complicity in a crime is contained in this video:

Concept and features

Joint participation determines the actions of two or more people who have the goal of implementing criminal intent and implementing a variety of interdependent actions. The uniqueness of such criminal acts lies in the need to differentiate the degree of involvement of each person involved, based on the contribution to achieving a joint goal, determining the required measure of retribution and a sufficient corrective effect, embodied in punishment.

The distribution of responsibilities between accomplices is quite difficult to identify, since, often, the only way to obtain information about this is through the statements of accomplices who are capable of slandering each other, misleading the investigation. In the absence of a real method to determine the degree of participation of each, retribution is chosen in such a way as if each were the sole executor of a criminal plot.

Objective and subjective signs of complicity in a crime

A criminal act must combine a number of subjective and objective characteristics in order to be recognized as being carried out with the joint participation of several individuals.

Objective, that is, not having a personal connection, characteristics usually include:

1. The possibility of imputing criminal liability to each or at least two of the accomplices, the powers of which are limited in terms of age and mental disposition to answer for their accomplishments. That is, if a crime is committed by three subjects, but one of them is registered in a psychiatric hospital as a schizophrenic, and the other has not reached the age of 14, then it is unacceptable to state complicity.
2. The need for a regulated number of accomplices for a specific act, which can be limited to at least two in the case of robbery or murder, or in large numbers when it comes to mass riots or rebellion with the use of weapons.
3. The presence of a common goal and mutual assistance of participants in achieving it, through making a feasible contribution to a solidarity cause.
4. An unambiguous causal relationship between the actions of the participants and the implementation of a negative event that caused harm and/or damage.

Subjective, that is, bearing a personal connotation, characteristics include:

1. Awareness of solidary participants about the existence of each other and joint actions to implement a single result of a criminal nature, since secret help and support, when only one of the subjects is aware of the existence of an accomplice, is not complicity.
2. Unity of intent , regardless of the motives for its implementation, which may have a personal connotation, for example, robbing a bank for one may be a means of revenge on the owner, the second does it to enrich himself, and the third wants to remove incriminating evidence that discredits him.

The qualifications of crimes committed in complicity and the problems in the area will be discussed below.

The video below will tell you more about what the Criminal Code of the Russian Federation says about complicity in crimes:

Qualification of crimes and problems in the sphere

The main obstacles to personifying a criminal act carried out by several accomplices arise in two cases:

• when only one of the accomplices is endowed with the subjective characteristics of a person suitable for criminal liability. Some justice authorities tend to charge complicity based only on the presence of a co-perpetrator or otherwise involved accomplice, which is most often applied to rape and is not correct;
• when a single subject is recognized as the real perpetrator due to the specific nature of the act or because only one of the accomplices, who took the blame, is detained. If there are those who assisted the perpetrator, being aware of what was planned and desiring the event to occur, regardless of how many people performed the criminal act, the issue of complicity should be considered.

Read below about the types and forms of complicity in committing a crime in accordance with the Criminal Code of the Russian Federation and criminal law.

Forms

Forms of participation, identified based on organizational characteristics, include:

1. A community that is formed as a result of the joining in the process of a criminal act of co-perpetrators who wish and contribute to the onset of harmful consequences, without prior agreement.
2. A group of criminals who united in advance before implementing the plan and agreed on the object of the act, its nature and method of implementation. The implementation of actions can be of a joint nature or involve role participation, where everyone is endowed with an individual function.
3. Organized group , which is a stable community of individuals united by interests and bonds of friendship, joint professional or informal activities. Such a combination of interests can be aimed at embodying a criminal style of behavior or at realizing a single criminal intent.
4. The criminal community is an enlarged form of consolidation of organized groups for the implementation of common goals of a criminal nature and the implementation of illegal activities, as the main supplier of material resources to participants. Such a community is the most dangerous, representing a society within a state, living according to its own norms, which are opposed to official legislation, which is not recognized as dogma.

Kinds

The identification of the diversity of types of complicity is made based on the functions assumed by each of the subjects of a collective criminal act, in particular:

• performer - a subject who performs the manipulations necessary to implement a crime, which is considered its objective side and the reason for the implementation of negative consequences. It is not permissible to recognize as a perpetrator an individual who is not subject to criminal liability due to his childhood or mental unfitness to answer for his actions;
• organizer - a person who coordinates and plans a crime, identifies and selects appropriate perpetrators, distributes responsibilities among them and supplies them with the necessary equipment, consumables, weapons, etc.

An organizer is also recognized as a subject who initiated and united a criminal group into a single community, or who headed it after the departure of the previous leader.

• instigator - a subject who, having a real or unidentified goal, induces another person to carry out illegal acts, through persuasion, material incentives, threats or other means. Motivation must be objective, that is, the formulation must contain a specific course of action and their consequences in order to be deterministic, like incitement;
• accomplice - one who, without taking an active part in the implementation of a criminal plan, assisted its perpetrators by supplying information, equipment or weapons, or otherwise, being aware of the crime in advance.

A specific form of complicity in crimes - with a special subject, implies the possibility of the presence of other subjects or assistants in the implementation of a crime projected on a unique subject, for example, a military man. The Criminal Code of the Russian Federation does not deny the possibility of joint participation of a community of persons, even if the performer, in fact, can only be one of them.

Sometimes we can talk about complicity in a careless crime. This formulation gives rise to many legal disputes.

Next we will look at liability for complicity in a crime.

Physical removal of obstacles

Such assistance may not involve making promises in advance. It can be expressed in:

1. Delivery of accomplices to the place of illegal actions and back.
2. Providing premises for a crime.
3. Removing illegally obtained items from the scene of the incident.
4. Delivery of the victim or his enticement.
5. Covering the location of illegal actions.
6. Indication of the subject of encroachment.
7. Stopping the vehicle in which the victim is located.
8. Standing on guard. When qualifying, it is necessary to find out whether the secrecy of carrying out illegal actions is an objective sign of the act provided for in the Special Part.
9. Distracting the attention of the victim and other persons when accomplices carry out illegal actions.

Removal of obstacles can be expressed in other ways, including inaction.

Types of complicity within criminal law

Article 35 of the Criminal Code of the Russian Federation reflects forms of complicity in a crime. These include:

1. the criminal act was carried out by a group of citizens, provided that two or more perpetrators took part in this event without prior agreement;
2. the crime was carried out by agreement if persons who agreed on it in advance took part in it;
3. the criminal act was carried out by a group (organized) united for this purpose, the citizens agreed on everything in advance;
4. a criminal act is considered committed by an organization (criminal) if it occurred in the presence of an organized group, an association of citizens who acted under leadership in order to commit a criminal act.