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Plenum of the Supreme Court of December 17, 2015 N 56 (as amended on December 17, 2015)
“On judicial practice in cases of extortion ( 163 CC
)»
TABLE OF CONTENTS
| — clause 1 Plenum No. 56 extortion has two objects: property and personality — clause 1 Plenum No. 56, direction of intent in extortion, benefit SUBJECT OF EXTORTION — clause 2 Plenum No. 56 things, money, shares — clause 2 Plenum No. 56 rights to property certified in documents — clause 3 Plenum No. 56 other actions: works, services VICTIM — clause 4 Plenum No. 56 not only the owner, but also another holder of property — clause 5 Plenum No. 56 relatives of the victim, these are relatives and persons in the family THREAT OF VIOLENCE — clause 6 Plenum No. 56, the threat of any violence, including murder, is a mandatory feature of Article Plenum No. 56, the threat must be perceived as real Completeness — clause 7 Plenum No. 56 from the moment the demand is brought to the attention of the victim Episodes — clause 8 Plenum No. 56 single intent, one continuing crime — clause 8 Plenum No. 56 periodic transfer of property, a single crime COLLECTION of extortion with other compounds — clause 9 Plenum No. 56 set of Plenum No. 56 set of Plenum No. 56 totality of extortion with — clause 9 Plenum No. 56 light, moderate harm are included in clause Plenum No. 56, grievous harm is included in clause Plenum No. 56 death of the victim, combined with Plenum No. 56 murder, combined with Plenum No. 56 destruction of property, combined with — clause 10 Plenum No. 56 during extortion, violence only reinforces the threat — clause 10 Plenum No. 56 moment of taking possession of property in the future — clause 10 Plenum No. 56 seizure immediately, this is robbery or robbery Combination with other compounds - Plenum No. 56 information discrediting honor and dignity - combined with Plenum No. 56 information about private life, combined with Plenum No. 56, the secret of adoption, in conjunction with Plenum No. 56 commercial, bank secrets, combined with — clause 12 Plenum No. 56 disgraceful information is discrediting honor and dignity — clause 12 Plenum No. 56, the validity of the information does not matter — clause 12 Plenum No. 56 other information constitutes a protected secret Legitimate claim — clause 13 Plenum No. 56 if the demands are legitimate, there is no extortion Group of persons - paragraph 14 Plenum No. 56 extortion by a group of persons ( - paragraph 14 Plenum No. 56 complicity in extortion - registration of property Large and extra large size - paragraph 15 Plenum No. 56 at the time of the demand exceeds the amount of |
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Nature of hazard
The nature of public
danger taken into account when sentencing
1) Draw the attention of the courts to the fact that the character
the public danger of the crime provided for by
163 Criminal Code
is determined
the direction of encroachment on:
- property relations and other property relations,
— as well as on the person (health, integrity, honor and dignity, other rights and legitimate interests).
It must be taken into account that when extorting, the perpetrator acts with the intent to obtain material benefit for himself or other persons.
SUBJECT OF EXTORTION
2) To the subject of extortion within the meaning of 163 of the Criminal Code
This includes, in particular, someone else’s (that is, not owned by the perpetrator) property, namely:
— things, including cash, certified securities;
— non-cash funds, uncertificated securities,
— as well as property rights, including rights of claim and exclusive rights.
Under the right to property, the transfer of which may be associated with demands for extortion, in 163 of the Criminal Code
is understood as the ability, certified in documents, to exercise the powers of the owner or legal possessor in relation to certain property.
3) Other actions of a property nature, the commission of which is aimed at extortion, include actions not directly related to the transfer of ownership or other property rights, in particular:
- performance of work or provision of services that are compensated in normal conditions of civil circulation;
— fulfillment by the victim of obligations for the perpetrator.
VICTIM
4) The following may be recognized as a victim of extortion:
- not only the owner or legal owner,
- but also another actual owner of the property - who suffered physical, property or moral harm
(for example, a person who guards property or has access to it due to official duties or personal relationships).
5) Within the meaning of Part 1 163 of the Criminal Code
relatives of the victim should include:
- his close relatives
(spouse, parents, children, adoptive parents, adopted children, siblings, grandparents, grandchildren),
— relatives
(all other persons, with the exception of close relatives, related to the victim),
- as well as persons belonging to the property
with the victim, or persons whose life, health and well-being are dear to the victim due to existing personal relationships.
THREAT OF VIOLENCE
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Case No. 01-0346/2018
Example
- if there was no threat of violence, then there is no element of extortion
6) Courts must keep in mind that extortion under Part 1 163 of the Criminal Code
, presupposes the presence of a threat of use of any violence, including
the threat of murder
or causing grievous harm to health.
The threat that accompanies the demand for extortion must be perceived by the victim as real, that is, he must have reason to fear that this threat will be carried out. To assess the threat as real, it does not matter whether the perpetrator expressed the intention to carry it out immediately or in the future.
7) Extortion is a completed crime from the moment when the demand is presented, combined with the one specified in Part 1 163 of the Criminal Code
threat, brought to the attention of the victim. Failure of the victim to comply with this requirement does not affect the legal assessment of the act as a completed crime.
Do not form a collection
crimes repeated demands under the threat specified in
Part 1 163 of the Criminal Code
, addressed to one or more persons, if these demands are united by a single intent and are aimed at taking possession of the same property or right to property or to obtain material benefit from committing the same thing actions of a property nature.
A requirement aimed at the periodic transfer of property to victims (for example, the monthly transfer of a certain amount of money) should also be qualified as a single crime.
COLLECTION of extortion with other compounds
9) If extortion involves:
- with beatings, committing other violent acts that caused physical pain,
- causing lung
harm to health,
- and average
severity of harm to health,
— torture
,
then such actions of the perpetrator should be qualified under clause “c”, part 2 of 163 of the Criminal Code
without additional qualification under Articles
112 of the Criminal Code
,
115 of the Criminal Code
,
116 of the Criminal Code
or
117 of the Criminal Code
.
In case of intentional infliction of serious
harm to health, the act is qualified under
paragraph “c” of part 3 of 163 of the Criminal Code
and does not require additional qualification under
111 of the Criminal Code
.
If, during extortion, the infliction of grievous harm to the health of the victim resulted through negligence in his death, the act should be regarded as a set of crimes provided for in paragraph “c” of Part 3 of 163 of the Criminal Code
and
part 4 111 of the Criminal Code.
Extortion associated with murder is classified as a set of crimes provided for in paragraph “c” of Part 3 of 163 of the Criminal Code
and
clause "z" part 2 105 of the Criminal Code
.
DIFFERENCES from robbery and robbery
10) When deciding the issue of delimiting robbery and robbery from extortion combined with violence, the courts should take into account that:
- in robbery and robbery, violence is a means of taking possession of property or retaining it,
— whereas with extortion, it reinforces the threat.
Taking possession of property:
- during robbery and robbery occurs - simultaneously with the commission of violent acts or immediately after their commission,
- and in extortion, the intention of the perpetrator is aimed at obtaining the required property - in the future.
In cases where extortion is associated with the direct confiscation of the victim’s property, in the presence of real
set of crimes, these actions, depending on the nature of the violence used, must be additionally qualified as robbery or robbery.
11) Destruction or damage during extortion of someone else’s property, if these acts caused significant
, damage, forms a set of crimes provided for by the relevant parts
163 of the Criminal Code
and
167 of the Criminal Code
.
SHAMEFUL INFORMATION
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— P.
Plenum No. 3: what is defamatory information?
12) Within the meaning of Part 1 163 of the Criminal Code
information disgracing the victim or his
relatives
should be understood as:
- information - defamatory
their honor, dignity;
- or damaging reputation (for example, information about the commission of an offense, an immoral act).
In this case, it does not matter whether the information under the threat of dissemination of which extortion is committed is true.
Other information, the dissemination of which could cause significant harm to the rights or legitimate interests of the victim or his relatives, includes, in particular, any information that constitutes a secret protected by law.
COMBINATION with other compounds when disseminating information
Form a set of crimes:
— dissemination during extortion of knowingly false information discrediting the honor and dignity of the victim and (or) his relatives
or undermining his (their) reputation - forms a set of extortion with
128.1 of the Criminal Code
;
- illegal dissemination of information about the private life of a person, constituting his personal or family secret - forms a set of extortion under Article 137 of the Criminal Code
;
- disclosure of the secret of adoption against the will of the adoptive parent - forms a set of extortion under Article 155 of the Criminal Code
;
—
illegal disclosure of information constituting commercial, tax or banking secrets - forms a set of extortion under
Article 183 of the Criminal Code
.
13) If the requirement to transfer property or the right to property or to perform other actions of a property nature is lawful, but is accompanied by the provisions specified in Part 1 163 of the Criminal Code
threat, then such actions do not entail criminal liability for extortion.
If there are signs of another crime (for example, threats to kill
,
arbitrariness
), the act should be qualified under the relevant article of the Special Part of the Criminal Code.
14) In cases where, according to a preliminary agreement between the partners
extortion in accordance with the distribution of roles, each of them commits a separate action that is part of the objective side of extortion (makes a demand, expresses a threat, or uses violence), all of them bear criminal liability for extortion committed by a group of persons by
prior conspiracy
.
If a person carries out the previously promised transfer to the perpetrator of a crime of property obtained as a result of extortion or registration of rights to it, then, in the absence of signs of participation in an organized group
, his actions are qualified as
complicity
under the relevant part
163 of the Criminal Code
and
part 5 of 33 of the Criminal Code
.
15) Extortion is considered committed on a large scale
or
an especially large
amount, if the demand is aimed at the transfer of someone else’s property, rights to property, performance of work or provision of services,
the value of which at the time of presentation of the claim exceeds the value indicated in the note. 4
to 158 CC.
16) Recommend that courts, when considering criminal cases of extortion, identify circumstances that contributed to the commission of the crime, violation of the rights and freedoms of citizens, as well as other violations of the law committed during the preliminary investigation or during the consideration of the criminal case by a lower court, and in accordance with Part 4 29 Code of Criminal Procedure
private definitions (decrees) to draw the attention of relevant organizations and officials to them.
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Resolution of the Plenum of the Armed Forces of the Russian Federation “On judicial practice in cases of extortion (Article 163 of the Criminal Code)”
The resolution of the Plenum of the Supreme Court of Russia dated December 17, 2015 No. 56 “On judicial practice in cases of extortion (Article 163 of the Criminal Code of the Russian Federation)” was published, which replaced the resolution of the Plenum of the Supreme Court of the Russian Federation dated 05/04/1990 No. 3 “On judicial practice in cases of extortion" and dated August 18, 1992 No. 10 "On the implementation by courts of the guidelines of the Plenum of the Supreme Court of the Russian Federation on the application of legislation on liability for extortion."
The Supreme Court of the Russian Federation has updated clarifications on issues arising when courts consider criminal cases of extortion
Thus, it is noted that the nature of the public danger of the crime provided for in Article 163 of the Criminal Code of the Russian Federation (“Extortion”) is determined by the direction of the encroachment on property relations and other property relations, as well as on the person (health, integrity, honor and dignity, other rights and legitimate interests ). In extortion, the perpetrator acts with the intent to obtain material benefit for himself or other persons.
Not only the owner or legal owner, but also another actual owner of the property (for example, a person guarding the property or having access to it due to official duties or personal relationships) who has suffered physical, property or moral harm can be recognized as a victim of extortion.
In cases where, according to a preliminary agreement between the accomplices of extortion, in accordance with the distribution of roles, each of them commits a separate action that is part of the objective side of extortion (makes a demand, or expresses a threat, or uses violence), all of them bear criminal liability for extortion committed by a group of persons by prior agreement. If a person carries out the previously promised transfer to the perpetrator of a crime of property obtained as a result of extortion or registration of rights to it, then in the absence of signs of participation in an organized group, his actions are qualified as aiding under the relevant part of Article 163 of the Criminal Code of the Russian Federation and Part 5 of Article 33 of the Criminal Code of the Russian Federation.
Repeated demands under the threat specified in Part 1 of Article 163 of the Criminal Code of the Russian Federation, addressed to one or more persons, do not form a set of crimes, if these demands are united by a single intent and are aimed at taking possession of the same property or right to property or at obtaining material benefits from the commission the same property action. A requirement aimed at the periodic transfer of property to victims (for example, the monthly transfer of a certain amount of money) is also classified as a single crime.
When considering criminal cases of extortion, courts are recommended to identify the circumstances that contributed to the commission of the crime, violation of the rights and freedoms of citizens, as well as other violations of the law committed during the preliminary investigation or during the consideration of the criminal case by a lower court, and pay attention to them through private rulings (decrees). relevant organizations and officials.
The text of the resolution can be found here.
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Legislative framework of the Russian Federation
Having examined the materials of the generalization of judicial practice in cases of extortion of state, cooperative, public and personal property, the Plenum notes that the courts of the Russian Federation generally correctly resolve cases of this category.
<*> The resolution should be applied to the extent that does not contradict current legislation.
However, there are shortcomings in the practice of courts applying legislation on liability for extortion.
The necessary demands are not always placed on the quality of the preliminary investigation, as a result of which in some cases not all persons involved in the commission of a crime are identified, and the role of each accomplice is not clarified with sufficient completeness.
Sometimes mistakes are made in the qualification of the actions of the perpetrator in the presence of a real combination of extortion and other crimes, as well as in limiting extortion combined with violence from robbery and robbery.
There is no uniform understanding by courts of such qualifying features of extortion as the commission of a crime by an organized group, causing major damage or other grave consequences.
There are still facts when, in cases of this category, the courts, if there are grounds, do not make private determinations regarding the identified causes and conditions that contributed to the commission of crimes. It is very rare that private rulings are made in cases of extortion committed by teenagers.
In order to eliminate the noted shortcomings and in connection with the need to clarify unclear and controversial issues of application of the current legislation that have arisen in judicial practice, the Plenum of the Supreme Court of the Russian Federation decides:
1. Draw the attention of the courts to the increased public danger of extortion and the need for strict compliance with the law when considering cases of this category.
In order to implement the principle of inevitability of punishment for a crime, courts are obliged to take measures provided for by law to identify all persons involved in the commission of extortion, to establish the role and degree of guilt of each defendant.
2. When deciding the issue of delimiting robbery and robbery from extortion combined with violence, the courts should take into account that if in robbery and robbery violence is a means of seizing property or retaining it, then in extortion it reinforces the threat. The seizure of property during robbery and robbery occurs simultaneously with the commission of violent acts or immediately after their commission, while in extortion the intent of the perpetrator is aimed at obtaining the required property in the future.
At the same time, it should be borne in mind that if extortion is associated with the direct seizure of the victim’s property, then in the presence of a real set of crimes, these actions should be additionally qualified, depending on the nature of the violence used, as robbery or robbery.
3. A demand for the transfer of property, accompanied by a threat of disclosure of information about an offense committed by the victim or his relatives, as well as other information, the disclosure of which may damage the honor and dignity of the victim or his relatives, should be qualified as extortion under the threat of disclosure of disgraceful information. In this case, it does not matter whether the information, under the threat of disclosure of which the extortion is committed, is true.
If information of a deliberately slanderous or offensive nature is disclosed about the victim or his relatives, the act, if there are grounds for it, should be classified according to the totality of crimes provided for in Art. 95 or Art. 148 of the Criminal Code of the RSFSR and, accordingly, Art. 130 or art. 131 of the Criminal Code of the RSFSR.
Legal comment:
Chapter two of the Special Part of the Criminal Code of the RSFSR dated October 27, 1960 (Articles 89 - 101) has been excluded. — Federal Law dated July 1, 1994 N 10-FZ.
4. Extortion should be considered repeated in all cases where a person has previously committed one of the crimes specified in the notes to Art. Art. 89 and 144 of the Criminal Code of the RSFSR, regardless of whether it was convicted for them.
(as amended by the Resolution of the Plenum of the Supreme Court of the Russian Federation dated August 18, 1992 N 10)
Extortion cannot be classified as repeated if, by the time this crime was committed, the statute of limitations for bringing to criminal responsibility for a previously committed crime, specified in the notes to Art. Art. 89 and 144 of the Criminal Code of the RSFSR, as well as if the criminal record for it has been expunged or removed in accordance with Art. 57 of the Criminal Code of the RSFSR or was removed by virtue of an act of amnesty or pardon.
(as amended by the Resolution of the Plenum of the Supreme Court of the Russian Federation dated August 18, 1992 N 10)
Repeated demands for the transfer of property or rights to property addressed to one or more persons do not constitute repetition if these demands are united by a single intent and are aimed at taking possession of the same property.
(as amended by the Resolution of the Plenum of the Supreme Court of the Russian Federation dated August 18, 1992 N 10)
5. When qualifying a crime under Part 3 of Art. 95 of the Criminal Code of the RSFSR, the criterion of causing major damage should be guided by that contained in the note to Art. 89 of the Criminal Code of the RSFSR is a cost criterion established by the Law of the Russian Federation of December 5, 1991, according to which an act is considered to have caused major damage to the state or public organization if it was committed in an amount fifty times greater than the minimum wage established by the legislation of the Russian Federation.
(as amended by the Resolution of the Plenum of the Supreme Court of the Russian Federation dated August 18, 1992 N 10)
In this case, one should proceed from the minimum wage that existed at the time the crime was committed. If by the time of the trial, sentencing or consideration of the case in higher courts, the legislation establishes a higher minimum wage, then this circumstance cannot serve as a basis for excluding the specified qualifying feature from the charge.
(as amended by the Resolution of the Plenum of the Supreme Court of the Russian Federation dated August 18, 1992 N 10)
6. When qualifying extortion of personal property of citizens on the basis of causing major damage (Part 3 of Article 148 of the Criminal Code of the RSFSR), one should take into account the value of the seized, damaged or destroyed property, as well as its quantity and significance for the victim, the financial situation of the latter, in particular the size of it income, presence of dependents, etc.
(as amended by the Resolution of the Plenum of the Supreme Court of the Russian Federation dated August 18, 1992 N 10)
7. If repeated extortion was committed with a single intent against the same person and caused a total of large damage, then such actions should be qualified under Part 3 of Art. 95 or under Part 3 of Art. 148 of the Criminal Code of the RSFSR, depending on whether there was extortion of state, cooperative or public property or whether the extortionist demanded the transfer of personal property.
When qualifying a crime under Part 3 of Art. 95 or part 3 of Art. 148 of the Criminal Code of the RSFSR, the sign of extortion - causing large damage - should take into account the value of the property, both transferred to the extortionist and damaged or destroyed by him.
8. Since extortion is completed from the moment the demand for the transfer of property is presented under the threat of causing harm to the victim or his relatives, provided for in Parts 2 and 3 of Art. Art. 95 and 148 of the Criminal Code of the RSFSR, as qualifying signs of extortion, damage or destruction of property, causing major damage or other grave consequences can only be incriminated in the event of the actual occurrence of the consequences specified in the law.
9. Violence that is not dangerous to life and health, as a qualifying sign of extortion (Part 2 of Article 95 and Part 2 of Article 148 of the Criminal Code of the RSFSR) should be understood as beatings, causing minor bodily injury that did not result in a short-term health disorder or minor permanent loss of ability to work, as well as other violent actions associated with causing physical pain to the victim or restricting his freedom, if this did not create a danger to life and health.
(as amended by the Resolution of the Plenum of the Supreme Court of the Russian Federation dated August 18, 1992 N 10)
10. Violence dangerous to life and health, as a qualifying sign of extortion (Part 3 of Article 95, Part 3 of Article 148 of the Criminal Code of the RSFSR) should be understood as infliction of less serious bodily injury to the victim or minor bodily injury resulting in short-term health disorder or minor permanent loss of performance, as well as other violence, which, although it did not cause the specified harm, at the time of application created a real danger to the life and health of the victim.
(as amended by the Resolution of the Plenum of the Supreme Court of the Russian Federation dated August 18, 1992 N 10)
11. Other grave consequences provided for as qualifying characteristics in Part 3 of Art. 95 and part 3 of Art. 148 of the Criminal Code of the RSFSR, the death or suicide of the victim or his relatives, the forced cessation of the activities of an enterprise, organization, cooperative or professional activity of the victim, as well as other consequences that the court, taking into account the specific circumstances of the case, may recognize as grave, may be recognized.
12. If extortion was committed with the use of grievous bodily harm, the act should be qualified according to the totality of crimes provided for in Part 3 of Art. 95 (part 3 of article 148) of the Criminal Code of the RSFSR and the corresponding part of art. 108 of the Criminal Code of the RSFSR.
(as amended by the Resolution of the Plenum of the Supreme Court of the Russian Federation dated August 18, 1992 N 10)
Extortion associated with premeditated murder is not covered by the disposition of paragraph “a” of Art. 102 of the Criminal Code of the RSFSR and must be qualified according to the totality of crimes provided for in Art. Art. 102, paragraph “a”, and 95, part 3 (148, part 3), Criminal Code of the RSFSR. If the murder was committed to conceal the fact of extortion, the actions of the perpetrator should be qualified under Art. 102, paragraph “e”, and the corresponding part of Art. 95 (148) of the Criminal Code of the RSFSR.
13. Explain to the courts that the provisions specified in Art. Art. 95 and 148 of the Criminal Code of the RSFSR, the qualifying signs of crimes should be taken into account when committing extortion both in relation to the victim and his relatives.
The relatives of the victim should be understood as close relatives listed in Art. 34 of the Code of Criminal Procedure of the RSFSR, as well as other persons whose life, health and well-being, due to the prevailing life circumstances, are dear to the victim.
14. An organized group, provided as a qualifying feature of extortion (Part 3 of Article 95 and Part 3 of Article 148 of the Criminal Code of the RSFSR), should be understood as a stable group of two or more persons united by intent to commit one or more crimes. As a rule, such a group carefully prepares and plans the crime, distributes roles between accomplices, is equipped with technical equipment, etc.
15. Recommend to the Supreme Courts of the republics, regional, regional, Moscow and St. Petersburg city courts, courts of the autonomous region and autonomous districts to strengthen supervision over the quality of consideration of cases of extortion of property, over the implementation by people's courts of the requirements of Art.
Art. and 21.2 of the Code of Criminal Procedure of the RSFSR, constantly provide them with the necessary assistance in the correct application of the law, periodically study and summarize judicial practice in cases of this category. \r\n
The plenum of the Armed Forces took up arms
The plenum of the Supreme Court of the Russian Federation on May 16 made changes to several of its decisions on criminal cases. The draft document was presented at the plenary session by Supreme Court Judge Sergei Zelenin.
The amendments affected the resolution of the Plenum of the Supreme Court of December 27, 2002 “On judicial practice in cases of theft, robbery and robbery.” Zelenin noted that changes had already been made to this document earlier. At the same time, according to him, there is now a need to supplement the text with new provisions and correct previously given clarifications. This is due to the spread of crimes such as theft of other people's property. The Supreme Court judge said that last year property crimes had a “significant weight”, accounting for about 40% of the total number of criminal cases. The number of those convicted under Art. 158 of the Criminal Code of the Russian Federation for theft has decreased slightly in 2021, but these crimes still make up a quarter of the total, and together with robbery - 30%
The Supreme Court draws the attention of the courts to the fact that the factual circumstances that served as the basis for imposing an administrative penalty under Part 2 of Art. 7.27 of the Code of Administrative Offenses of the Russian Federation, do not in themselves predetermine the court’s conclusions about a person’s guilt in committing a crime under Art. 158.1 of the Criminal Code of the Russian Federation. Such guilt is established by the court in the procedures provided for by the criminal procedural law on the basis of the entire body of evidence, including those not examined during the consideration of the case of an administrative offense.
In addition, according to Zelenin, judicial practice shows that illegal entry into a home is often associated with the destruction of obstacles: doors, locks, windows; with destruction or damage to other property of the victim, including expensive furniture and household appliances. Although this property is not the subject of theft, the damage may sometimes not be inferior to the damage from theft.
In this regard, paragraph 20 of the plenum resolution was adjusted. The new edition explains that in the case when a person, committing theft, robbery or robbery with illegal entry into a home, premises or other storage facility, deliberately destroyed and damaged doors, locks, etc., as well as other property of the victim who was not present the subject of theft (for example, furniture, household appliances and other things), committed in the event of causing significant damage should be additionally qualified under Art. 167 of the Criminal Code of the Russian Federation.
Clause 23 clarifies the explanation regarding robbery committed with the use of weapons or objects used as weapons. Such items include any material objects that could cause death or harm to the victim’s health (a penknife or kitchen knife, an ax, etc.), as well as other items, the use of which created a real danger to the life or health of the victim, for example, mechanical sprayers, aerosols and other devices containing irritating substances. In cases where the attacker threatens with an object simulating a weapon, for example, a dummy pistol, a toy weapon, etc., without intending to use these objects to cause harm dangerous to life and health, his actions, depending on the subjective perception of the victim , should be qualified as robbery (Part 1 of Article 162 of the Criminal Code of the Russian Federation), and if the victim understood that he was being threatened with a fake weapon, the act is qualified as robbery.
Changes were also made to the resolution of the Plenum of the Supreme Court dated June 29, 2010 “On the practice of application by courts of norms regulating the participation of victims in criminal proceedings.” In particular, it is clarified that a person can be recognized as a victim either at the request or at the initiative of the body in charge of the criminal case. The decision to recognize a person as a victim is made immediately from the moment the criminal case is initiated. Refusal to recognize a person, as well as the inaction of the inquirer, investigator, head of the investigative body, resulting in non-recognition of the person as a victim, may be appealed by this person in pre-trial proceedings.
Zelenin also noted that in the event of the death of a person, the rights of the victim pass to one of the close relatives or close persons (clause 4 of Article 5 of the Code of Criminal Procedure of the Russian Federation) and (or) close persons (clause 3 of Article 5 of the Code of Criminal Procedure of the Russian Federation). In this case, the resolution or ruling must contain information confirming that the specified person is close to the deceased. It is especially noted that the rights of victims cannot be transferred to employees of social protection bodies or representatives of municipal administrations.
Finally, the adjustments affected the resolution of the Plenum of the Supreme Court of March 5, 2004 “On the application by courts of the norms of the Criminal Procedure Code of the Russian Federation.” Paragraph two of paragraph 13 of the new edition explains that the list of evidence confirming the accusation, as well as the list of evidence referred to by the defense, includes not only a reference to the sources of evidence in the indictment, indictment or indictment, but also a summary of the evidence, since by virtue of Part 1 of Art. 74 of the Code of Criminal Procedure of the Russian Federation, evidence in a criminal case is any information on the basis of which the court, prosecutor, investigator, investigator, in the manner prescribed by the Code of Criminal Procedure, establishes the presence or absence of circumstances that are subject to proof in criminal proceedings.
PLENATURE OF THE SUPREME COURT OF THE RUSSIAN FEDERATION
DECISION of December 17, 2015 N 56
ON JUDICIAL PRACTICE IN CASES OF EXTORTION (ARTICLE 163 OF THE CRIMINAL CODE OF THE RUSSIAN FEDERATION)
In order to ensure the unity of the practice of courts considering criminal cases of extortion, as well as in connection with issues arising from the courts, the Plenum of the Supreme Court of the Russian Federation, guided by Article 126 of the Constitution of the Russian Federation and Articles 2 and 5 of the Federal Constitutional Law of February 5, 2014 No. 3 -FKZ “On the Supreme Court of the Russian Federation” decides to provide the following clarifications:
1. Draw the attention of the courts to the fact that the nature of the public danger of the crime provided for in Article 163 of the Criminal Code of the Russian Federation (hereinafter referred to as the Criminal Code of the Russian Federation) is determined by the direction of the encroachment on property relations and other property relations, as well as on the person (health, integrity, honor and dignity, other rights and legitimate interests). It must be taken into account that when extorting, the perpetrator acts with the intent to obtain material benefit for himself or other persons.
2. The subject of extortion within the meaning of Article 163 of the Criminal Code of the Russian Federation includes, in particular, someone else’s (that is, not owned by the perpetrator) property, namely things, including cash, documentary securities; non-cash funds, uncertificated securities, as well as property rights, including rights of claim and exclusive rights.
The right to property, the transfer of which may be associated with demands for extortion, in Article 163 of the Criminal Code of the Russian Federation means the ability, certified in documents, to exercise the powers of the owner or legal possessor in relation to certain property.
3. Other actions of a property nature, the commission of which is the demand for extortion, include actions not directly related to the transfer of ownership or other property rights (in particular, the performance of work or the provision of services that are compensated in normal conditions of civil circulation; execution by the victim for the guilty party's obligations).
4. Not only the owner or legal owner, but also another actual owner of the property (for example, a person guarding the property or having access to it due to official duties or personal relationships) who has suffered physical, property or moral damage may be recognized as a victim of extortion. harm.
5. Within the meaning of Part 1 of Article 163 of the Criminal Code of the Russian Federation, the relatives of the victim should include his close relatives (spouse, spouse, parents, children, adoptive parents, adopted children, siblings, grandparents, grandchildren), relatives (all other persons, with the exception of close relatives who are related to the victim), as well as persons related to the victim, or persons whose life, health and well-being are dear to the victim due to existing personal relationships.
6. Courts must keep in mind that extortion, as provided for in Part 1 of Article 163 of the Criminal Code of the Russian Federation, presupposes the presence of a threat of any violence, including the threat of murder or causing grievous harm to health. The threat that accompanies the demand for extortion must be perceived by the victim as real, that is, he must have reason to fear that this threat will be carried out. To assess the threat as real, it does not matter whether the perpetrator expressed the intention to carry it out immediately or in the future.
7. Extortion is a completed crime from the moment when the presented demand, combined with the threat specified in Part 1 of Article 163 of the Criminal Code of the Russian Federation, is brought to the attention of the victim. Failure of the victim to comply with this requirement does not affect the legal assessment of the act as a completed crime.
8. Repeated demands under the threat specified in Part 1 of Article 163 of the Criminal Code of the Russian Federation addressed to one or more persons do not form a set of crimes if these demands are united by a single intent and are aimed at taking possession of the same property or right to property or obtaining material benefit from committing the same action of a property nature. A requirement aimed at the periodic transfer of property to victims (for example, the monthly transfer of a certain amount of money) should also be qualified as a single crime.
9. If extortion involves beatings, other violent acts that cause physical pain, as well as causing minor or moderate harm to health, torture, then such actions of the perpetrator should be qualified under paragraph “c” of Part 2 of Article 163 of the Criminal Code of the Russian Federation without additional qualification under articles 112, 115, 116 or 117 of the Criminal Code of the Russian Federation.
In the case of intentional infliction of grievous bodily harm on the victim, the act is qualified under paragraph “c” of Part 3 of Article 163 of the Criminal Code of the Russian Federation and does not require additional qualifications under Article 111 of the Criminal Code of the Russian Federation.
If, during extortion, the infliction of grievous harm to the health of the victim resulted in his death through negligence, the act should be regarded as a set of crimes provided for in paragraph “c” of part 3 of article 163 of the Criminal Code of the Russian Federation and part 4 of article 111 of the Criminal Code of the Russian Federation.
Extortion associated with murder is classified as a set of crimes provided for in paragraph “c” of Part 3 of Article 163 and paragraph “h” of Part 2 of Article 105 of the Criminal Code of the Russian Federation.
10. When deciding the issue of delimiting robbery and robbery from extortion combined with violence, the courts should take into account that in robbery and robbery, violence is a means of taking possession of property or retaining it, while in extortion it reinforces the threat. The seizure of property during robbery and assault occurs simultaneously with the commission of violent acts or immediately after their commission, and in extortion the intent of the perpetrator is aimed at obtaining the required property in the future.
In cases where extortion is associated with the direct confiscation of the victim’s property, in the presence of a real set of crimes, these actions, depending on the nature of the violence used, should be additionally qualified as robbery or robbery.
11. Destruction or damage during extortion of someone else’s property, if these acts entailed causing significant damage to the victim, forms a set of crimes provided for in the relevant parts of Articles 163 and 167 of the Criminal Code of the Russian Federation.
12. Within the meaning of Part 1 of Article 163 of the Criminal Code of the Russian Federation, information disgracing the victim or his relatives should be understood as information that discredits their honor, dignity or undermines their reputation (for example, information about the commission of an offense, an immoral act). In this case, it does not matter whether the information under the threat of dissemination of which extortion is committed is true.
Other information, the dissemination of which could cause significant harm to the rights or legitimate interests of the victim or his relatives, includes, in particular, any information that constitutes a secret protected by law.
Dissemination during extortion of knowingly false information discrediting the honor and dignity of the victim and (or) his relatives or undermining his (their) reputation, illegal dissemination of information about the private life of a person that constitutes his personal or family secret, disclosure of the secret of adoption against his will adoptive parent, illegal disclosure of information constituting commercial, tax or banking secrets form a set of crimes provided for in the relevant parts of Articles 128.1, 137, 155 or 183 and Article 163 of the Criminal Code of the Russian Federation.
13. If the demand for the transfer of property or the right to property or the commission of other actions of a property nature is lawful, but is accompanied by the threat specified in Part 1 of Article 163 of the Criminal Code of the Russian Federation, then such actions do not entail criminal liability for extortion. If there are signs of another crime (for example, threats to kill, arbitrariness), the act should be qualified under the relevant article of the Special Part of the Criminal Code of the Russian Federation.
14. In cases where, according to a preliminary agreement between the accomplices of extortion, in accordance with the distribution of roles, each of them commits a separate action that is part of the objective side of extortion (makes a demand or expresses a threat, or uses violence), all of them bear criminal liability for extortion committed by a group of persons by prior conspiracy. If a person carries out the previously promised transfer to the perpetrator of a crime of property obtained as a result of extortion or registration of rights to it, then, in the absence of signs of participation in an organized group, his actions are qualified as complicity under the relevant part of Article 163 of the Criminal Code of the Russian Federation and Part 5 of Article 33 of the Criminal Code of the Russian Federation.
15. Extortion is considered committed on a large or especially large scale if the demand is aimed at the transfer of someone else’s property, rights to property, performance of work or provision of services, the cost of which at the time of presentation of the demand exceeds the cost specified in paragraph 4 of the note to Article 158 of the Criminal Code of the Russian Federation.
16. Recommend that courts, when considering criminal cases of extortion, identify circumstances that contributed to the commission of the crime, violation of the rights and freedoms of citizens, as well as other violations of the law committed during the preliminary investigation or during the consideration of the criminal case by a lower court, and in accordance with Part 4 of Article 29 of the Criminal Procedure Code of the Russian Federation with private definitions (decrees) to draw the attention of relevant organizations and officials to them.
17. In connection with the adoption of this resolution, the following shall be declared invalid:
Resolution of the Plenum of the Supreme Court of the Russian Federation dated May 4, 1990 N 3 “On judicial practice in cases of extortion” (as amended by the resolutions of the Plenum of the Supreme Court of the Russian Federation dated August 18, 1992 N 10, dated December 21, 1993 N 11, dated October 25 1996 N 10);
Resolution of the Plenum of the Supreme Court of the Russian Federation dated August 18, 1992 No. 10 “On the implementation by courts of the guidelines of the Plenum of the Supreme Court of the Russian Federation on the application of legislation on liability for extortion.”
Chairman of the Supreme Court of the Russian Federation V.M. LEBEDEV
Secretary of the Plenum, Judge of the Supreme Court of the Russian Federation V.V. MOMOTOV
