Peculiarities of qualification of complicity in a crime using examples from practice

The seventh chapter of the Criminal Code of the Russian Federation is devoted to complicity in a crime. It is understood as the intentional participation in the commission of an illegal act by two or more persons. It is understood that the actions of some group members are a necessary condition for the actions of others; they complement each other and lead to criminal consequences. The result can be achieved through the efforts of all participants. Another prerequisite: there must be a causal relationship between the actions of group members and the consequences. Read about the features and responsibilities for complicity in our material.

Partners in crime

A crime committed by a group of persons differs from unlawful acts of an individual nature. Complicity is characterized by the commission of an act by two or more persons.

Accomplices to the crime are called:

performers;
organizers;
instigators;
accomplice

Thus, we can conclude that accomplices in a crime always have intent and a common goal, which is achieved through joint actions.

Important! Only a sane individual who has reached the age of 14 years (for some types of crimes) can be a participant or accomplice to a crime. The general age of criminal responsibility is sixteen years. Legal entities are not held criminally liable.

Accomplice and other accomplices of a criminal act

The Criminal Code contains Article 159, on the basis of which liability for fraud is assigned. Meanwhile, we must not forget that it is most often committed by a group of persons (two or more people), who, although they do not commit the illegal act with their own hands, contribute to its implementation. They are called accomplices, thus, in perpetrating any scam there are:

organizer;
executor;
instigator (one who persuaded others to act in violation of the law);
accomplice.

When assigning liability, the share of participation of each accomplice in the crime, as well as the scale of the scam and the amount of damage caused by the criminal acts, must be taken into account. A separate issue is the accomplice of fraud and the possibility of applying sanctions specifically to him, since there is an opinion that this person is the least involved in the criminal act.

Perpetrator of the crime

The perpetrator is a citizen of the Russian or other state who committed an unlawful act prosecuted by law, or participated in the implementation of such an action on an equal basis with other persons. The category of perpetrators also includes persons who, with the help of minors, the insane or other persons not subject to criminal liability in accordance with the Criminal Code of the Russian Federation and the Code of Criminal Procedure of the Russian Federation, committed a crime.

The use of other persons in an unlawful act entails increased liability. The court takes this factor into account as an aggravating circumstance and increases the term of serving the sentence.

Distinction from incitement

Along with aiding and abetting, the law also classifies incitement as complicity in committing socially dangerous criminal acts.
It is understood as inducing a person who will then become a perpetrator or even an organizer of a crime to commit it. At first glance, the functions of an instigator and an accomplice are similar - this is information support. However, there are a number of significant differences. Firstly, in the content of information. For example, the advice and instructions of the instigator will contain a proposal to perform one or another illegal action. The accomplice will give advice of a consulting nature: how to carry out the plan, hide traces, avoid consequences. And he will give them to someone who already has the intention of breaking the law.

Secondly, the instigator often uses threats, bribery, blackmail or other violent methods aimed at coercing the commission of criminal acts. The function of an accomplice is fundamentally different; he has no need to threaten or intimidate. It provides help and support in preparation for and after a crime.

Organizer of the crime

The organizer of a crime is a citizen who expressed a desire to commit an act, prepared and organized the necessary conditions, and also supervised the commission of a crime. The head of an organized crime group or community is also called an organizer.

Law enforcement agencies often devote all their efforts to searching for the organizers of crimes, since by establishing the location of a person and his identity, more than one crime can be solved and many people can be brought to justice.

Complicity in the history of criminal law

The institution of complicity is one of the oldest in criminal law; norms related to responsibility for the joint commission of a crime by several persons were contained in medieval legal sources. For example, the Russian Truth in the Brief Edition contains the following norm (Article 31):

And if someone steals a horse, or oxen, or robs a cage, then, if one stole, then pay him a hryvnia and thirty cuts; if there are 18 of them, then pay each person three hryvnias and 30 rez.
Original text (Old Russian) And if anyone steals either a horse, or oxen, or a cage, and if only one steals, then pay him a hryvnia and thirty rezan; or there will be 18 of them, then the husbands will pay three hryvnias and 30 rezans. — Russian truth, short edition

Accomplice

An accomplice is a kind of specialist who acts intentionally. Aiding is the activity of an accomplice. Persons involved in complicity have information in a certain area and provide it to criminals to commit acts. Thus, a person who:

advised on how best to commit a crime;
pointed out the facts, provided the necessary information;
prepared or acquired tools;
hid the guilty person, the objects of the crimes;
destroyed traces of illegal acts;
acquired or sold illegal substances and objects of crime.

The status of an accomplice is assigned to a person only if there is evidence indicating the citizen’s intent.

Complicity is the actions of an accomplice aimed at ensuring the commission of a crime through organizational actions.

Excess

In criminal law there is such a thing as excess. The definition defines the commission of a crime by the perpetrator that does not pursue the interests of the entire group. Therefore, when sentencing, the person’s actions are assessed separately, and other participants in the organized crime group are not punished for their actions. For example, when organizing theft and robbery, one of the participants had the intent to commit murder. Art. 105 of the Criminal Code of the Russian Federation (murder) will be charged only to one accused, the rest will be punished for committing theft and robbery.

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:

Feature of the association.
System of interaction between participants.
Level of organization.
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:

Sustainability.
Availability of an organizer.
Increased bond strength.
Cohesion of participants.
Great degree of danger.
Criminal skills of accomplices.
Duration of existence.
Availability of special means.
Distribution of duties.
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.

Liability of accomplices in crime

Responsibility for the commission of a crime by accomplices is imposed in accordance with Article 33 of the Criminal Code of the Russian Federation. The fact that a crime was committed by all participants simultaneously (that is, co-execution of a crime) is considered separately.

If during the investigation a citizen is identified who participated in the commission of an unlawful act, but his characteristics do not fit into any category of accomplices, he is recognized as an organizer, instigator or accomplice.

A perpetrator who does not complete the crime (not on his own initiative) due to external circumstances is not brought to criminal liability, unlike other accomplices. The accomplice will also be held liable even if the crime is not completed. In this case, the fact of preparation or attempt will be established.

Responsibility for complicity under the Criminal Code of the Russian Federation depends on the type of crime committed, as well as the conditions. For example, theft will be classified as a crime of minor or medium gravity (depending on the damage caused), and murder is a particularly serious crime. Therefore, the period that will be assigned to the accomplice varies depending on the type of unlawful act committed.

In addition, it is not uncommon for a person to persuade citizens to commit a crime, but these attempts are not successful. Criminal liability is provided for the above-described act and is charged under the article “preparation for a crime.”

Punishment for complicity is imposed in accordance with Article 33 of the Criminal Code of the Russian Federation.

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:

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.”
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.
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

Types of complicity

This category of complicity differs from incitement by the commission of actions by the subject himself. That is, there is no part of the psychological pressure on other persons.

In addition to the actions established by law, complicity involves:

transportation of accomplices to the crime to the necessary places;
preparation of the crime scene;
disposal of evidence items;
delivery of the victim;
preparation of illumination of dark places or reverse action;
stopping the movement of vehicles used by the crime victim;
guard and waiting for the end of illegal actions;
distracting the attention of others.

Inaction may also be considered complicity if the preliminary investigation proves that it caused (or did not prevent) the commission of a crime.

Classification

In the legal literature, it is customary to classify complicity into intellectual and physical. Intellectual participation includes:

recommendations for committing an offense, that is, advice;
instructions for performing specific actions for the successful implementation of the plan;
providing any useful information regarding persons, facts, circumstances, phenomena and events;
a promise of assistance in hiding the criminal himself or the funds or property he used;
promise of assistance in selling or purchasing stolen property.

An accomplice becomes an accomplice in a crime only if the perpetrator took advantage of the information or advice received from him. If this does not happen, then there is no important sign of complicity - joint activity. Therefore, the adviser is not subject to punishment. A promise made in advance, on the contrary, is already considered a committed offense, even if it is subsequently not fulfilled.

Physical complicity consists of committing specific actions aimed at preparing for a crime. If intellectual assistance strengthens the determination to accomplish what is planned, then physical assistance directly contributes to this. It may consist of:

in the presentation of means (tools, vehicles, special clothing, etc.);
in removing obstacles (breaking the door, obtaining the consent of officials, turning off the alarm, etc.).

In practice, it is quite difficult to clearly distinguish one type of complicity from another. They are closely interconnected. In addition, an accomplice can act in several roles, for example, first as an instigator, and then as an organizer. One thing is certain - he does not directly participate in the execution of those actions that constitute the objective side of the charged crime.

Liability for physical complicity can only arise when there is a direct connection between the commission of unlawful acts and the assistance provided. If the criminal did not take advantage of it, then there can be no talk of complicity.

Sentence for aiding and abetting

The judicial system of the Russian Federation adequately evaluates the actions of accomplices and holds everyone accountable in accordance with their guilt.

Complicity in a crime is an aggravating reason, so there is no need to count on the leniency of the court. Thus, complicity is an aggravating form of committing a crime. At sentencing, taking into account the above, severe punishment will be imposed.

Sentence for complicity under Art. 33 of the Criminal Code of the Russian Federation will be drawn up in the form of one document containing an introductory part, which discloses the fact of committing a crime. The descriptive part of the sentence contains information about each of the accomplices in the crime, their act, and the qualifications of the crime. In addition, the court establishes mitigating and aggravating circumstances, after which it pronounces a sentence against each guilty party.

Complicity in committing a crime does not exempt a person from liability.

Types of assistance in fraud

Complicity can manifest itself in two varieties: physical and intellectual. Each of them has its own objective aspects, which should be discussed in a little more detail.

Physical complicity Acts as both an action and an inaction of accomplices to fraud. An active action is the transfer to the perpetrator of the objects of the commission of a criminal act (for example, bank account details or personal data of the victim). Inaction is considered failure to fulfill official duties to help fraudsters (for example, a bank employee ignored the receipt of questionable money into the account).
Intellectual complicity The second type of complicity in a crime involves providing information, advice, recommendations and other instructions to attackers. However, unlike ordinary ones, such advice helps criminals carry out their plans and steal other people's property. Having an “assistant” informant at his disposal, the criminal brings his act to its logical conclusion or intends to do so in the future. Intellectual complicity can also be considered a promise given to accomplices to hide traces of a violation or to sell stolen items. Disclosure of a fraudulent plan implies punishment for all its participants, regardless of who they were. The only difference will be the severity of such punishment.

What exactly does an accomplice to a crime do?

In the practical activities of law enforcement agencies, situations are often encountered when the signs of individual crimes have some similarities with fraud, which creates certain difficulties for the law enforcement officer in the process of qualifying the analyzed acts. This circumstance necessitates a distinction between fraud and other similar crimes.

In the criminal law literature, all thefts are usually divided into forms and types.

Forms of theft are understood as the methods of committing them provided for by criminal law, which differ from each other in the mechanism of taking possession of property.

Fraud differs from other elements of theft of someone else's property in the specific ways it is committed - by deception or abuse of trust, since it is as a result of deception or due to the fact that the fraudster deliberately abuses the trust placed in him, the owner or other owner voluntarily and on his own initiative removes the property from his possession or transfers the right to this property and, thus, gives the perpetrator the authority to own, use, dispose of, and manage the stolen property.

One of the possible mistakes that can lead to an incorrect classification of the crime is an inaccurate understanding of how to distinguish between such forms of theft as theft (or robbery) and fraud. Errors in the application of the criminal law in such cases are determined, as a rule, by the fact that often when committing thefts and even robberies, the perpetrator resorts to deception, misleading the persons who own the property, or gains their trust in order to facilitate access to the property and only then commits secret or open theft.

The specificity of theft and robbery is that possession of property is carried out by seizing it against or against the will of the owner. Thus, when a theft is committed, the seizure is carried out secretly and, therefore, in addition to and without any participation of the owner. In robbery, the perpetrator, in contrast to theft, seizes property openly, completely ignoring everyone around him, suppressing the will of the persons in whose possession or custody it is, or threatening to use violence that is not dangerous to life or health.

However, in practice, courts make mistakes in assessing the objective side of the crime.

Thus, P.’s robbery actions were regarded by the court as fraud and a threat of causing grievous bodily harm under the following circumstances.

P., with the goal of taking over someone else’s property, came to Shch.’s apartment, introduced himself to her as the brother of a woman from whom Shch.’s son had stolen 60,000 rubles, and demanded the return of the stolen property, threatening her and her son with serious bodily harm and setting the apartment on fire. Fearing that the threat would be carried out, Shch. gave P. 60,000 rubles.

Also read: Liability under Article 159.2 of the Criminal Code of the Russian Federation

In this situation, deception was only a condition that facilitated the seizure of property. The victim's money was taken against her will. The “voluntariness” of transferring property to the criminal, characteristic of fraud, was absent.

Certain difficulties are caused by distinguishing fraud from misappropriation or embezzlement (Article 160 of the Criminal Code of the Russian Federation), since in both cases the perpetrator commits theft, abusing the trust of the owner or other legal owner. The delimitation of the compositions under consideration must be carried out according to the following criteria.

Within the meaning of the law, embezzlement and embezzlement, as well as fraud, can be committed in relation to any property: state, public, municipal, owned by private individuals, as well as commercial or other organizations.

organizer;
executor;
instigator (one who persuaded others to act in violation of the law);
accomplice.

When talking about an accomplice in fraud, we mean a person who not only knew about the commission of illegal acts, but also directly contributed to their implementation with advice and ideas, collecting and providing various information, eliminating possible obstacles, recommendations on how to hide traces, sell property obtained by fraud. An accomplice is also someone who covers up the direct perpetrator in every possible way.

Thus, the accomplice is an active accomplice to the crime and, just like all other participants, is subject to punishment under Article 159 of the Criminal Code of the Russian Federation concerning fraud (this is indicated by Article 34, which establishes the procedure for assigning liability for complicity in criminal activity).